3 Employer Pitfalls in Donning and Doffing Policies

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Law360 - October 2, 2013

Natalie HrubosDonning and doffing is a hot area of wage and hour law that often leads to class and collective actions and, as a result, creates significant potential liability and litigation costs for employers. These cases involve whether the Fair Labor Standards Act and/or state laws require employers to pay employees for time spent putting on and taking off (i.e., "donning and doffing") certain work clothes and protective equipment.

Generally, time spent in activities which are "preliminary" (before employees begin their principal work activities) and "postliminary" (after employees end their principal work activities) is not compensable. The U.S. Supreme Court, however, has held that a principal work activity includes any activity "integral and indispensable" to that principal work activity. Donning and doffing activity can be an integral and indispensable part of principal work activities for which an employee is employed.

An activity is "integral and indispensable" if necessary to the performance of the principal activity and done predominantly for the benefit of the employer. Thus, where employees are required by law, by rules of the employer or by the nature of the work, to change clothes on the employer's premises, that activity is generally considered "integral and indispensable" to the principal activity and therefore compensable.

Importantly, when an employee's clothes-changing time is compensable under the FLSA, the employee's "travel time" from the locker room to the work station and vice versa is also compensable (as is time spent waiting to doff).

Section 203(o) of the FLSA provides that a collective bargaining agreement between the employees and management may render the clothes-changing time noncompensable. However, in certain jurisdictions, the "walking" and "waiting" time may still be compensable even if the clothes-changing time is not compensable.

To minimize risk in this area, employers should consider these three legal pitfalls associated with the donning and doffing activities of their employees.

Misconception About What Constitutes "Work"

Oftentimes, employers assume that because taking off or putting on clothes does not require much effort, it cannot be considered "work" and therefore need not be compensated. This reasoning is, however, legally problematic.

In a Third Circuit case, De Asencio v. Tyson Foods Inc., employees at a poultry processing plant claimed that under the FLSA, they were entitled to be paid for the time spent putting on and taking off, as well as washing, their work gear. When instructing the jury in this case, the district court stated that in considering whether the donning, doffing and washing was "work" under the FLSA, the jury had to consider whether the activities involved physical or mental exertion.

On review, the Court of Appeals concluded that the jury instruction on donning and doffing was erroneous as a matter of law in that it directed the jury to consider whether the gear was cumbersome, heavy or required concentration to don and doff. The language "impermissibly directed the jury to consider whether the workers had demonstrated some sufficiently laborious degree of exertion, rather than some form of activity controlled or required by the employer and pursued for the benefit of the employer."

This case illustrates how critical it is for an employer to assess the donning and doffing activities of its employees to determine if the activities meet the applicable definition of "work." Although certain exceptions may apply (such as where the time spent is de minimis), generally, if the clothes-changing activity is controlled by the employer, or for the benefit of the employer, employers must take steps to ensure that time spent engaged in the activity is properly recorded and compensated.

Lack of Clarity on What Clothing Is Mandatory Versus Optional

Another common pitfall in this area is not being clear about what clothing or equipment employees are actually required to wear versus what is provided merely for their personal comfort and convenience.

This was a reason the employer lost summary judgment in Lugo v. Farmer's Pride. There, the employer argued that plaintiffs' claims for uncompensated donning and doffing activities were "de minimis" and, therefore, not compensable.

The U.S. District Court for the Eastern District of Pennsylvania, however, held that it could not rule on plaintiffs' claims as a matter of law because "there are genuine disputes of fact as to what items Defendant requires its employees to use, and whether the required PPE primarily benefits Defendant."

For example, the parties did not agree on whether the defendant required the plaintiff to wear items such as mesh gloves, plastic gloves, cotton gloves, hair nets, arm guards, plastic sleeves, safety glasses, plastic aprons and smocks to promote sanitation and safety or whether plaintiffs wore some of these items merely for their personal comfort and convenience.

A clear communication to employees regarding which gear the employer required employees to wear to perform the job and what gear was optional and for the convenience of the employees may have improved the employer’s chances of obtaining summary judgment in the Lugo case.

Employers should determine what is mandatory (versus optional) for each individual job position and develop written instructions to employees to be clear about this distinction. Additionally, if certain clothing or equipment is mandatory, the employer must assess how much time it takes employees to don and doff those items and, if necessary, take steps to properly record and compensate employees for that time (as well as subsequent walking and waiting time).

Unnecessary "Captive Uniform" Policies

A third common pitfall in this area is requiring employees to change into clothing or equipment on the employer's premises, rather than giving them the option of changing at home, in situations where changing on the premises is not necessary for the safe or effective performance of the job. This is because if employees have the option of wearing clothes and equipment to and from work, a court is less likely to conclude that those employees are entitled to compensation for time spent donning and doffing such clothes and equipment.

The obvious flip side of this is that a court is more likely to conclude that employees are entitled to compensation for donning and doffing activities if the employees are required to complete those activities at the workplace.

Indeed, in In re Tyson Foods Inc., Fair Labor Standards Act Litigation, the U.S. District Court for the Middle District of Georgia denied the employer's motion for summary judgment, rejecting its argument that the donning and doffing activities at issue constituted clothes changing "under normal conditions" and, therefore, were not "integral and indispensable" to the workers' principal activities.

In rejecting the employer's argument, the court noted the employees were "required to don and doff the sanitary gear, such as smocks and gloves, at the plant and only at the plant, and they are not permitted to wear the sanitary gear home or into the restroom or break room. These circumstances are markedly different from 'normal' clothes changing, where the clothes are merely a convenience to the employee and the employee can wear the clothes to and from work."

In that case, however, the court determined that requiring employees to change clothes at the plant was necessary to enable the employer to produce an uncontaminated product. That may not be true for every employer. Employers are, therefore, well-advised to evaluate the rationale for any requirement that employees change clothes at the workplace, rather than at home.

If clothes-changing is not necessary for the safe and effective performance of a particular job, the employer should develop written instructions that make clear that employees in that job position have the option of changing clothes at home.

If it is necessary for the employer to maintain a policy that requires employees to don and doff at the workplace, then generally, the employer should take steps to ensure that time spent in donning and doffing activities (as well as subsequent walking and waiting time) is properly recorded and compensated. Being proactive in this regard can save employers the significant cost of defending class and collective actions.

Reprinted by permission from Law360.com.