Time Spent Dressing and Undressing for the Job is “Work”?!

Suppose your employees work on a production line and wear uniforms and personal protective equipment. They must be on the line ready to work by 8:00 a.m.  It takes them 10 to 12 minutes to don their uniforms and personal protective equipment. You pay them only for the time they are working on the line. Did you know that you might actually be liable for non-payment of wages and possibly overtime?What?! How can that be? The time spent dressing and undressing  beforehand working on the line may be “work” and the time spent doing it may be compensable. More after the jump…

Believe it or not, donning and doffing cases are a “hot button”! The US Supreme Court has now heard at least four such cases, including the most recent one Sandifer v. United States Steel Corporation argued this past November (more on that in a bit) . How does getting dressed and undressed for work trigger questions of pay—and ones on which US Supreme Court justices would spend so much time?

We know that the Fair Labor Standards Act requires employers to pay employees for time they spend working, including overtime. (Click here for a review). The FLSA also says that activities which are “preliminary” (i.e. done before the employee begins his/her principal work) and “postliminary” (done after the employee ends his/her principal work activities) are not compensable. Wouldn’t getting dressed before and undressed after work be preliminary and postliminary— and therefore non-compensable? Not if the activity in question is, in the US Supreme Court’s words, “integral and indispensable” to the principal work activity.   It then qualifies as a principal work activity, and the time spent doing it is compensable. Why does the time spent dressing and undressing “donning and doffing”, matter? If donning and doffing time accumulates enough to push the employee’s weekly work hours over 40, then guess what the employee is entitled to receive? Yep, overtime! Multiply that by weeks, months or even years of unpaid overtime and it starts to add up, no? Similarly, what about time getting to and from the place where the employee performs his/her principal activities? In general, the answer, per the Portal-to-Portal Act of 1947, which amended the FLSA, is “No”.  (This point is kind of related to “donning and doffing” cases, so bear with me!)

How is donning and doffing  principal work activity? The US Supreme Court decided what constitutes “principal activities” in Steiner v. Mitchell 350 US 247 (1956). The Court ruled that time spent by production employees at a battery plant donning protective work clothes before their productive work, and showering and changing back into their personal clothes at the end of their productive work, in order to avoid exposure to toxic chemicals was compensable. Since the principal activity of battery production,  could not be accomplished without protecting employees from toxic chemicals, such activities themselves become “principal”, according to the Court.

In 2005, the US Supreme Court in IBP v Alvarez et al 546 US 21,  unanimously held that employees must be compensated for time spent walking between their changing area and the production floor after donning and doffing specialized protective gear.  See where the Portal-to-Portal Act becomes relevant? Does it  apply to time spent going to and from the changing area and production area? The employee is already at the workplace (s/he is not first coming from home) and  has changed into required protective gear, a principal activity. In other words, the “relevant walking…occurred after the workday beg[an] and before it end[ed]”. The Court also held that waiting time to doff the gear is compensable while waiting time to don it is not–presumably using the same reasoning, that waiting time to doff was connected with an activity occurring  prior to the ending of the workday, whereas the time before donning was before the workday had begun.

Does it matter that the donning and doffing does not require much effort? Per the Third Circuit in DeAsencio v Tyson Foods Inc 06-3502 (Sept. 6, 2007) “No,  as long as the activity is controlled by or for the benefit of the employer. Employers therefore must be clear as to which clothing or equipment is actually required, as opposed to just provided for employees’ personal comfort and convenience. (See  Lugo v. Farmer’s Pride  967 A.2d 963 (2009). If the employee may wear clothes and equipment to and from work and changing at home (i.e. changing on premises is not necessary for safe and effective job performance) then a court is less likely to rule that employees should be compensated for time spent donning and doffing such equipment. Employees required to don and doff sanitary gear such as smocks and gloves at the employer’s plant, and not permitted to wear such gear home or even into the restroom or break room, are most likely entitled to compensation for the donning and doffing time.

In Sandifer v United States Steel, the Court must decide what constitutes “clothes”. Huh? This case involves a collective bargaining agreement. The FLSA  allows collective bargaining agreements to exclude time spent changing clothes from compensable work time. Is protective safety gear such as goggles, earplugs, knife holders, etc., “clothes”? The employees (and the DOL) argue that clothes only encompasses ordinary apparel, whereas US Steel argues that “clothes” encompasses the entire outfit. Also, if a worker merely puts flame-retardant pants, shirts, etc on over their regular clothes rather than actually substituting one set of clothes for another, are the employees “changing”  clothes? Yes, people really do ask and argue over these questions, and yes, the answers can actually be important to some people. Depending on the ruling, employees could be compensated for some of their donning and doffing time, despite the “changing clothes provision” in the collective bargaining agreement. The Emplawyerologist will be keeping an eye out for the results of this one!

Meanwhile, here are some takeaway’s for employers:

1.  If you can allow your employees to change into and out of clothing or protective gear at home,  you probably will not have to compensate your employees for donning and doffing time.
2. If you do need to require employees to change in and out of clothing or protective gear on your premises, keep track of the actual time each employee spends doing so. Create and maintain good records. Record keeping goes a long way toward fending off fraudulent, or inaccurate claims, and toward showing government authorities in an audit that you are in compliance with wage and hour and other employment laws.
3. Communicate clearly with your employees (preferably in writing) about which gear is required and which is merely provided for their comfort and convenience. You may even want to get employees to sign an acknowledgement of receipt of any such communication.

It is now time for me to doff my bloggers’ cap (and the two seconds that took is unfortunately not compensable work time)! See  you next week when we talk about whether and/or when on-call time is compensable work.

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.

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