Labor & Employment
10/21/2009 9:55:18 AM EST
Swanson on Donning and Doffing Litigation
Whether employees are entitled to wages for time spent putting on, taking off and cleaning safety gear, also known as "donning and doffing," under the Fair Labor Standards Act (FLSA) is an issue with which courts have grappled. The issue continues to present controversy for employers, practitioners, and courts alike, as employees seek back pay for uncompensated donning and doffing-related activities. In this Analysis, Kelly Swanson discusses the history of donning and doffing litigation and examines the issues underlying employee-donning and doffing claims. She writes:
In ... [IBP, Inc. v. Alvarez, 546 U.S. 21 (U.S. 2005)], the Court found that any activity that is "integral and indispensable" to the employees' principal work is itself a "principal activity" under the Portal Act. The Court then reasoned that because employees' donning and doffing of protective gear is "integral and indispensable" to their principal activity, the time the employees spent walking between the changing and production areas of the employer's plant is all part of a "continuous workday" and, therefore, the walking and waiting time is compensable under the FLSA. Likewise, the Court also found that the continuous workday rule mandates that the time spent by employees waiting to doff protective equipment at the end of their work shift is equally unaffected by the Portal Act, and is therefore compensable.
Donning and Doffing Developments after Alvarez
In the wake of the Supreme Court's decision in Alvarez, courts have acknowledged that "an employer will seldom have defenses applicable to an employee who either works overtime and/or is paid close to minimum wage to the extent that the employee is uncompensated for required donning and doffing of company uniforms when performed in the workplace." But because the precise issue of the compensability of donning and doffing was not directly addressed by the Supreme Court in Alvarez, employers in various industries continue to assert that donning and doffing is non-compensable under the FLSA. Capitalizing on perceived splits amongst and between the jurisdictions, employers have asserted several different defenses to such claims in an effort to avoid financial responsibility for compensating employees who must don and doff required personal protective equipment in order to perform their jobs.
The Threshold Question of Whether Donning and Doffing is "Work"
One of the most highly-anticipated, post-Alvarez decisions addressing employer-defenses to donning and doffing claims came from the Court of Appeals for the Third Circuit in De Asencio v. Tyson Foods, Inc [500 F.3d 361 (3d Cir. Pa. 2007)]. In De Asencio, current and former poultry processing employees brought suit against Tyson Foods under the FLSA and state wage and hour law seeking compensation for time spent donning and doffing protective equipment.
In June 2006, the issues of whether employees' donning and doffing activities constituted "work" under the FLSA and whether the time incurred on such activities was de minimis and therefore, non-compensable, went to a jury trial. Much of the evidence presented at trial by both sides focused on the factors that courts have considered in determining the threshold question of whether particular activities constitute "work" under the FLSA. Tyson Foods argued for a jury instruction that would equate "work" with the need for some level of physical or mental exertion harking back to the definition of "work" first established by the Supreme Court in Tennessee Coal [v. Muscoda, 321 U.S. 590, 597 (U.S. 1944)]. Conversely, the plaintiffs argued that any such instruction would directly contradict the Supreme Court's ruling in Alvarez, which reaffirmed the Court's prior holdings that "exertion' [i]s not in fact necessary for an activity to constitute work' under the FLSA."
(footnotes omitted)
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