Navigating the Fair Labor Standards Act (FLSA) has always been a challenge for employers. Now, with increased litigation, this challenge has become more difficult. In fact, in the last 15 years, FLSA cases have shot up more than 400 percent.
Many of these lawsuits focus on “donning and doffing” liability. With limited exception, employers must pay employees for time spent “donning” and “doffing” (putting on and taking off) protective gear. The meat and poultry industry is particularly vulnerable to donning and doffing lawsuits, and many companies have been forced to respond to class-action claims.
However, by understanding the issues involved and proactively planning ahead, companies can avoid problems and minimize the risks of litigation.
Federal and State Laws
The FLSA establishes federal minimum wage and overtime pay standards. It requires employers to pay employees for all time worked. The Supreme Court has ruled that “work” is activity that is “integral and indispensable” to the employee’s principal activities, and work occurs not only when the employer has scheduled the employee to work, but also when the employer has “suffered or permitted” the employee to work.
The FLSA was also amended by the Portal-to-Portal Act, which specifically excludes certain activities from working time, including walking, riding, or traveling to and from the actual place where the principal work activity or activities is performed; and activities that are preliminary to or come after the principal activity or activities.
In the seminal case 10 years ago, IBP v. Alvarez, the US Supreme Court ruled that time spent donning and doffing protective clothing is compensatory under the FLSA. The court stated that “time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the ‘continuous workday’ and is compensable under the FLSA.” Courts have also made clear that some items take such little time to don or doff, such as hairnets or earplugs, that the time may be considered de minimis and disregarded.
In addition, in a welcome decision last year (Integrity Staffing Solutions, Inc. v. Busk), the Supreme Court ruled that time spent waiting in security lines before and after a shift was not “integral and indispensable” to the work, and thus was not compensable.
Staying in Compliance
In order to avoid potential claims, employers should thoroughly review their current policies regarding donning and doffing, and pre- and post-work activities for all nonexempt employees. This review should include:
• Reviewing current donning and doffing policies – Together with HR and legal counsel, employers should review how donning and doffing is handled. The best practice is to position time clocks in such a way that employees will clock-in before they put on protective gear, and will clock-out after they have taken off protective gear. In addition, employers should account for the time it takes employees to don and doff protective gear, both before they go on break and before they return from break, to ensure that employees are provided a full, work-free break.
• Look at before- and after-work activities – If employees are required to undergo security screenings or perform other pre-work activities that they are not paid for, be sure that those do not qualify as critical aspects of the work they are paid to perform. In the meat industry, knife sharpening is a typical example of a compensable activity. The Supreme Court’s decision in Integrity Staffing was welcome, but facts specific to each employer may alter the analysis and outcome.
Even minor errors involving the FLSA can lead to major problems for employers. By staying on top of pay issues, companies can minimize potential issues with workers, regulators, and the courts.