[author: Michael Cardman, XpertHR Legal Editor]
Employers need not necessarily compensate employees for the time employees actually spend putting on protective gear before their shifts and taking it off again after their shifts, a federal appeals court has held. Rather, it is enough to compensate employees for the amount of time it should reasonably take them to complete the task.
In Lopez v. Tyson Foods, +2012 U.S. App. LEXIS 18564 (8th Cir. 2012), a group of employees at a meat-processing plant sued their employer under the Fair Labor Standards Act, claiming they were entitled to overtime for time they spent donning and doffing clothes and equipment.
A jury returned a verdict in favor of the employer, and the employees appealed to the 8th Circuit Court of Appeals. Among other things, the employees argued that the district court erred by issuing jury instructions stating that "[w]hen activities occur pre-shift or post-shift, only the time reasonably spent is compensable" (emphasis added).
The employees claimed this jury instruction violated the FLSA. The U.S. Department of Labor agreed, and filed a friend-of-the-court brief arguing that once the employees' principal activities began, they needed to be compensated for all the time they spent during the continuous workday, regardless of how long those activities took to perform or whether productive work was being performed during the entire time.
The 8th Circuit was not persuaded, however. "Neither [the employees nor the DOL] identifies precedent from the Supreme Court or this court adopting or rejecting 'actual' or 'reasonable' time as the proper standard," it stated.
The court stopped short of ruling that a "reasonable time" standard was appropriate as a matter of law; however, it concluded that "[u]nder current law, the district court's 'reasonable time' instructions, if error, were not clear error."
The 8th Circuit's ruling in Lopez appears to conflict with other appeals court rulings, including Perez v. Mountaire Farms, Inc., +650 F.3d 350, 372 (4th Cir. 2011), setting up a possible appeal to the U.S. Supreme Court.