Meat + Poultry - December 2015 - 86

LABOR

Donning and doffing
issues linger
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
Richard Alaniz
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

The meat
and poultry
industry is
particularly
vulnerable
to donning
and doffing
lawsuits.

86

MEAT+ POULTRY | 12.15 | www.meatpoultry.com

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.
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Meat + Poultry - December 2015

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