Total Articles: 15
Tenth Circuit Rules Donning and Doffing Protective Equipment Held to be Compensable
The question of whether to pay employees for putting on protective gear has plagued employers for years. While the federal courts are divided over this issue, at least five Appellate Courts – the Fourth, Sixth, Seventh, Eleventh and now the Tenth Circuits – have held that personal protective equipment is included within the meaning of “clothes” under Section 203(o) of the FLSA, and thus not compensable.
Tenth Circuit Decides that Protective Gear Included in FLSA Exemption for Changing Clothes
Executive Summary: The Tenth Circuit, which includes Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma, decided this week that an employer did not violate the Fair Labor Standards Act ("FLSA") by failing to pay employees for time spent donning and doffing protective gear. See Salazar v. Butterball LLC (July 5, 2011).
Compensability of Time Spent Donning and Doffing and Pre and Post-Shift Activities Continues to Divide the Courts
The question often arises whether the time spent donning and doffing clothes and personal protective equipment is compensable time. Federal courts are divided over this issue. In particular, the courts disagree about the meaning of clothes as used in Section 203(o) of the Fair Labor Standards Act. Under this Section, certain employees do not have to be compensated for changing their clothes. Courts interpret the meaning of clothes differently. While some courts have held that it includes both uniforms and personal protective equipment, other courts have held that personal protective equipment is not included. The Supreme Court has not addressed the issue, and recently refused to review a lower courts ruling that personal protective equipment is included within Section 203(o). Sepulveda v. Allen Family Foods Inc. While the Supreme Court declined to find a split in the Appellate Courts, the reality remains that federal courts interpret the scope of the exclusion under Section 203(o) differently.
Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says.
Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].
DOL Addresses Meaning Of "Clothes" Under FLSA.
The U.S. Department of Labor (DOL) recently clarified the definition of "clothes" under Section 203(o) of the Fair Labor Standards Act (FLSA). Section 3(o) provides that time spent "changing clothes or washing at the beginning or end of each workday" is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to "the express terms or by custom or practice" under a collective bargaining agreement. The DOL now has concluded that this exemption "does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job."
Update: Court Might Have Rejected Donning/Doffing "Administrator Interpretation" Without Citing It. A Subtle Dig?
We previously posted about the U.S. Labor Department's Administrator Interpretation saying that unionized employers cannot exclude time spent donning and doffing certain protective equipment from compensable "hours worked," even if an applicable union contract or practice treats the time as unpaid. On August 2, 2010, the Seventh Circuit U.S. Court of Appeals held that unionized workers at a Kraft Foods plant could sue under Wisconsin state law for wages relating to their time spent donning and doffing certain safety gear and other items at work. They made their claim even though Kraft and the union had earlier agreed that this time would be non-compensable under the federal Fair Labor Standards Act's Section 203(o). Spoerle v. Kraft Foods Global, Inc., 16 W.H. Cases2d (BNA) 711 (7th Cir. 2010).
Protective Equipment Not Included in FLSA Exemption for Changing Clothes.
Recently, the U.S. Department of Labor (DOL) issued an Administrator's Interpretation (AI) reversing DOL positions published during the Bush Administration and stating that employees must be compensated for time spent donning and doffing certain kinds of "protective equipment" even if under the terms of the relevant collective bargaining agreement (CBA), or the CBA's custom and practice, such time is to be unpaid. See Administrator's Interpretation No. 2010-2, available on the DOL web site at: http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010_2.htm. The AI also reverses other DOL interpretations and states that while time spent changing "clothes" (as opposed to "protective equipment") can still be treated as unpaid time pursuant to the terms of a CBA or custom and practice, "subsequent activities, including walking and waiting, are compensable."
DOL Issued its Second Administrators Interpretation that Alters the Definition of Clothes Under the FLSA.
The Wage and Hour Division of the Department of Labor (DOL) issued its Second Administrators Interpretation addressing what is considered clothes for purposes of determining compensable time under the Fair Labor Standards Act (FLSA). This most recent Interpretation reverses several opinion letters by stating that the exemption for donning or doffing clothes under Section 3(o) applies only to apparel and not several types of protective safety equipment. The Administrator also concluded that even though employers do not have to compensate employees for donning or doffing clothes if they are exempt under Section 3(o), these activities could be principal activities and trigger the beginning or end of the workday, resulting in compensable time.
DOL Reverses Its Position On Donning And Doffing "Protective Equipment" In Union Setting.
In a pronouncement applicable to unionized workplaces, this week the U.S. Labor Department's Wage and Hour Division issued an Administrator's Interpretation stating that unionized employers cannot treat time spent donning and doffing certain "protective equipment" as unpaid time, even if an applicable union contract or practice treats the time as unpaid. This reverses DOL's previous positions published in opinion letters in 2002 and 2007. The new position revives DOL's earlier position in opinion letters from 1997-2001.
Donning/Doffing Case Illustrates Potential Opportunities and Pitfalls for Unionized Employers.
Wage and hour lawsuits under the Fair Labor Standards Act (FLSA) are becoming increasingly fertile ground for litigation. Why is that? The FLSA provides that plaintiffs lawyers will receive attorney fees if their suits are successful.
Donning, Doffing, Walking And Waiting: Paid Or Unpaid Time?
Test your knowledge on the following wage payment questions.
U.S. Supreme Court Grants Employees More Compensable Time (pdf).
On November 8, 2005, the U.S. Supreme Court
unanimously held in consolidated cases (IBP, Inc. v.
Alvarez, No. 03-1328, and Tum v. Barber Foods,
No. 04-66) that time spent by employees walking from a
changing area to the production area is compensable
under the Fair Labor Standards Act (as amended by the
Portal-to-Portal Act) when it follows the donning of
required protective gear.
Justices Tackle "Walking, Working & Wages" (pdf).
The U.S. Supreme Court began its
2005-2006 term by hearing a pair of
class action employment lawsuits raising
compensation issues for workers
who are required to put on and take off
protective gear before starting their
work shift. A little more than a month
later, in one of the first decisions of the
term, the high court issued its ruling
in these cases. The result has been generally
perceived as a victory for workers.
This decision raises significant
issues for employers with these types
of workers and raises difficult questions
for many other companies. IBP,
Inc. v. Alvarez (No. 03-1238) and Tum v.
Barber Foods, Inc. (No. 04-66), U.S. Supreme
Court (November 8, 2005).
U.S. Supreme Court Rules Employees Must Be Paid For Some Walking And Waiting Time In Connection With Putting On And Taking Off Protective Gear (pdf).
On November 8, 2005, the U.S. Supreme Court issued a unanimous decision in two
consolidated overtime pay class action lawsuits, IBP, Inc. v. Alvarez and Tum v. Barber Foods,
Inc. The Court ruled employers must pay employees who walk from and to changing areas
at the beginning and end of their shift and don and doff (i.e., put on and take off) protective
clothing and equipment needed for their jobs. The Court further ruled that the time employees
spent waiting to take off gear at the end of their shift was compensable, but time spent waiting
to receive and put on gear at the beginning of a shift was not compensable.
National Alert -- When Walking And Wages Collide (pdf).
The first dispute heard by the U.S. Supreme Court this term involved a pair of class action
employment lawsuits raising compensation issues for workers who are required to wear protective gear. Today, the high court issued its ruling in these cases, which was generally in favor of the workers. For employers with these types of workers, this stands to dramatically affect their workplace.
