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Total Articles: 13

Applying Integrity Staffing, Ninth Circuit Holds that Firefighters’ Time Moving Gear to and from Temporary Assignments is Not Compensable Under the FLSA

Applying the Supreme Court’s unanimous decision in Integrity Staffing Solutions, Inc. v. Busk, the United States Court of Appeals for the Ninth Circuit recently ruled that firefighters are not entitled to compensation under the FLSA for time spent moving certain necessary gear to and from temporary work assignments at fire stations other than their “home” stations. Balestrieri v. Menlo Park Fire Prot. Dist., 2015 U.S. App. LEXIS 15785 (9th Cir. Sept. 4, 2015).

Donning/Doffing Personal Protective Items: What About Mealtime?

As we wrote in our January Labor Alert, the U.S. Supreme Court's ruling in Sandifer v. United States Steel Corp. interpreted the federal Fair Labor Standards Act's Section 3(o) to apply to putting on and taking off a variety of personal protective items. This paves the way for possibly excluding time spent in such "donning and doffing" from the scope of compensable FLSA worktime under many collective bargaining agreements.

Seventh Circuit Takes Matters into Its Own Hands in FLSA Donning and Doffing Case (Part 2 of 2)

Yesterday, we discussed the first part of the Seventh Circuit’s recent decision in Mitchell v. JCG Industries penned by Judge Richard Posner. When it was released, I tweeted:

Seventh Circuit Gets (Maybe Too) Clever in FLSA Donning and Doffing Case (Part 1 of 2)

A few weeks ago on Twitter, I remarked on Mitchell v. JCG Industries, a case from the Seventh Circuit penned by Judge Richard Posner:

Supreme Court Clarifies Meaning Of "Changing Clothes" Under The Fair Labor Standards Act

On January 27, 2014, the U.S. Supreme Court held that the time spent by employees donning and doffing (putting on and taking off) certain protective gear is not compensable under Section 203(o) of the Fair Labor Standards Act (FLSA). This ruling will significantly impact the ability of employees to seek compensation for the donning and doffing of certain items in the unionized setting. Additionally, the Court made comments about the de minimis doctrine which could well impact employers in the nonunionized environment. Sandifer v. United States Steel Corp.

Supreme Court Rules “Changing Clothes” Is Not Compensable Under Plant Workers’ Union Contract

On January 27, in a very limited ruling, the Supreme Court of the United States held that an employer was not required to pay union employees for the time it takes them to put on and take off protective gear when their collective bargaining agreement did not provide for compensation for that time. After analyzing whether the workers’ protective gear qualifies as “clothes,” the Court held that, under the union contract between the parties, the time that the employees spent donning and doffing their protective gear was not compensable under section 203(o) of the Fair Labor Standards Act (FLSA). The decision, which was unanimous (except that Justice Sotomayor did not join in footnote 7), affirms the Seventh Circuit Court of Appeals’ 2012 ruling and reinforces employers’ ability to negotiate the compensability of such activities through a collective bargaining agreement. For nonunion employers, this ruling does not change the donning and doffing rules under the FLSA. Sandifer v. United States Steel Corp., No. 12-417, Supreme Court of the United States (January 27, 2014).

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.

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 court’s 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).

DOL Issued its Second Administrator’s Interpretation that Alters the Definition of “Clothes” Under the FLSA.

The Wage and Hour Division of the Department of Labor (DOL) issued its Second Administrator’s 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.
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