The federal Fair Labor
Standards Act (FLSA) requires employers to pay employees for all hours worked, which
can include time employees must spend donning and doffing required protective
gear. We’ll review a new federal appeals court ruling that looks at when you
must compensate workers for time spent changing into and out of such gear.
Safety Gear Required
At a Tyson Foods, Inc.,
plant in
hourly chicken processing employees were required, without compensation, to put
on and take off safety and sanitary clothing before and after their paid shifts
and two daily meal breaks. The employees generally had to wear smocks,
hairnets, beard nets, ear plugs, and safety glasses. Some employees also had to
put on dust masks, plastic aprons, soft plastic sleeves, cotton glove liners,
rubber gloves, metal mesh gloves, and rubber boots. Employees claimed they
spent about 15 minutes per shift donning and doffing this gear.
The workers filed a
collective action (which is a class action-type suit) under the FLSA on behalf
of about 500 plant workers. They alleged that Tyson was required to pay for the
time spent changing into and out of the required gear. Tyson countered that
these activities weren’t compensable “work” because they didn’t require
physical or mental exertion.
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Jury Says Time Not
Compensable
At the trial, the court
instructed the jury that the donning and doffing wasn’t work—and therefore
wasn’t compensable—if the activities didn’t require exertion. The court said
exertion was defined by whether the gear was cumbersome, heavy, or required
concentration to put on or take off. The jury returned a verdict in Tyson’s
favor, and the employees appealed.
Heavy Exertion Not
Required
Now a federal appeals
court has thrown out the verdict, explaining that the trial court incorrectly
instructed the jury on the standard for determining whether Tyson had to pay
for donning and doffing time.1 The idea that an activity constitutes work only if it is
sufficiently laborious was off base. The correct standard, said the appeals
court, is whether the workers engaged in an activity that’s controlled or
required by the employer and pursued for the employer’s benefit—and this
doesn’t require a determination of how cumbersome or difficult the activities
are.
Work
activities that occur before or after the employee’s principal work activity are
compensable only if they are integral and indispensable to the principal
activity
The court explained that
if an activity counts as work, that alone doesn’t mean it must be paid for. Instead,
work activities that occur before or after the employee’s principal work
activity (such as the actual poultry processing work) are compensable only if
they are integral and indispensable to the principal activity. The court
pointed out that previous court decisions (including one from the Ninth Circuit,
which covers
have established that donning certain types of protective gear is indeed
integral to performing the work. This is true if an employee can’t perform the principal
activity or can’t perform it safely without putting on the gear, or if the law
or nature of the work requires an employee to change clothes on the employer’s
premises. The only exception to the work being compensable is when the time
spent on the donning and doffing is so minimal—perhaps a few seconds or
minutes—that it may be disregarded for pay purposes.
The court concluded that
the Tyson employees’ donning and doffing was indeed work. And Tyson didn’t argue
that it wasn’t integral to the employees’ principal work activities. The court
returned the case to the trial court to determine whether the time involved
each day was minimal.
Practical Tips
It is important to keep
in mind that besides the actual time spent changing into and out of protective gear,
the U.S. Supreme Court ruled a few years ago that employers may also have to
compensate employees for time spent walking between changing areas (where they
must don and doff protective gear) and production areas. To help minimize your
overtime liability stemming from donning and doffing activities, here are two
quick tips:
1. Make it easy. Provide adequate space
in the locker room or other changing areas so workers can change quickly.
2. Maintain records. Keep complete records of
all hours your employees work—including all time that counts as part of the
workday, such as time spent changing into and out of protective gear. Not only
is such recordkeeping required by law, but if your pay practices are
challenged, accurate records will make it easier to show that your employees
were properly paid.
You can link to the new decision
online at www.ca3.uscourts.gov/opinarch/063502p.pdf.
_
1 De Asencio v. Tyson
Foods, Inc., U.S.C.A. 3rd Cir. No. 06-3502, 2007