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Mary M. Krakow

Mary M. Krakow Employment & Labor

mkrakow@fredlaw.com
612.492.7164
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Donning, Doffing, Walking and Waiting: Paid or Unpaid Time?

By: MARY M. KRAKOW

January 2006

TEST YOUR KNOWLEDGE ON THE FOLLOWING WAGE PAYMENT QUESTIONS:

  1. Employers must pay non-exempt employees for time spent at the beginning and end of a work shift changing into and out of (i.e., donning and doffing) clothes or gear not unique to the employee's job. True or False?
  2. Employers must pay non-exempt employees for time spent at the beginning of a work shift waiting in line with other employees to don unique protective gear required for the employee's job. True or False?
  3. Employers must pay non-exempt employees for time spent prior to and at the end of their shift donning and doffing unique protective gear required for the employee's job. True or False?
  4. Employers must pay non-exempt employees for time spent prior to and at the end of their work shift walking between the company locker room where they don and doff unique protective gear and the employees' work station. True or False?
  5. Employers must pay non-exempt employees for time spent at the end of a work shift waiting in line with other employees to doff unique protective gear required for the employee's job. True or False?

The answers, in many cases, will be (1) False, (2) False, (3) True, (4) True, and (5) True. Of course, as should not be surprising, the answers may change depending on the particular facts of the situation.

If you did not answer each question correctly, you are not alone. The U.S. Supreme Court in the case of IBP, Inc. v. Alvarez, U.S. No. 03-1238, 11/8/05, recently resolved previously conflicting answers by lower courts to these five questions. The IBP ruling involved two different lower court cases heard together because of the similarity of their issues: IBP v. Alvarez, 339 F.3d 894 (9th Cir. 2003) and Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004).

THE IBP CASE

The IBP employees slaughtered and processed fresh beef, pork, and related products and were required to wear company-provided outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots (what the courts referred to as non-unique clothing or gear). The employees who used knives in their daily work duties also were required to wear a variety of protective equipment for their hands, arms, torsos, and legs (e.g., chain link metal aprons, vests, plexiglass armguards, and special gloves). Employees stored their equipment and tools in company locker rooms where they also donned and doffed their non-unique gear and unique protective gear at the beginning and end of each shift. IBP paid its employees beginning with the first and stopping with the last piece of meat processed each shift plus an additional four minutes each day for clothes changing.

The employees initiated a class action lawsuit to recover back wages for all time spent donning and doffing the non-unique gear and the unique protective gear and walking between the locker rooms and production floor at the beginning and end of each shift which, the company agreed, totaled much more than the four minutes of allowed paid time.

Both the District Court for the Eastern District of Washington, which initially heard the case, and the Ninth Circuit Court of Appeals, which heard the appeal, differentiated between donning and doffing the non-unique gear and the protective gear. Both courts held that time spent donning and doffing protective gear unique to the IBP jobs (e.g., chain link metal aprons, vests, plexiglass armguards, and special gloves) was compensable under the Fair Labor Standards Act because it was "an integral and indispensable part of the principal activities" of the employees. On the other hand, both courts ruled that time spent donning and doffing the non-unique gear (e.g., hard hats, ear plugs, safety glasses, boots, or hairnets) was not compensable. As to this second ruling, the Court of Appeals clarified that while donning and doffing ordinary gear might, in the right circumstances, be considered an "integral and indispensable part of the principal activities" of some employees and, therefore, be compensable, the time spent by the IBP employees donning and doffing the non-unique gear was so small (de minimis) as not to be noteworthy for pay purposes. Neither the company nor the employees challenged these two rulings on appeal to the Supreme Court.

Both the District Court and the Court of Appeals also ruled that the employees' walking time between the locker rooms and the production floor, both at the beginning and end of the employees' work shifts, was compensable because it occurred during the "continuous workday." The company appealed this ruling but the Supreme Court agreed with the lower courts.

The Supreme Court looked to both the Fair Labor Standards Act and the Portal-to-Portal Act in its decision. The latter Act, the Court said, in general defines an employee's "workday" to include all time between the commencement and completion on the same shift of an employee's principal activity or activities. Any activity that is "integral and indispensable" to a "principal activity" is itself a "principal activity" and part of the compensable "continuous workday."

Finding that donning and doffing the unique protective gear was "integral and indispensable" to the IBP employees' other "principal activities," the Court ruled that donning and doffing the protective gear in the company locker rooms was the employee's first and last principal activity of the workday. Walking between the locker room and production floor at the beginning and again at the end of the work shift was, therefore, a compensable activity as part of the employees' "continuous workday."

The Court compared the time spent walking between the locker rooms and the production floor to time spent walking between two different positions on an assembly line during an employee's continuous workday. The Court rejected the company's argument that walking from the locker rooms to the production floor should be compared to time spent walking from time clocks located near a plant entrance to the employees' respective places of work prior to the start of their productive labor, which is generally not compensable time.

THE BARBER CASE

The employees in Barber processed live poultry and alleged that the company, among other things, owed them for time spent before their shift waiting to don protective gear required for their jobs and at the end of their shift waiting to doff that gear. The First Circuit Court of Appeals ruled that all such time was "preliminary and postliminary" activity excluded from FLSA coverage for pay purposes. The Supreme Court disagreed only with part of the First Circuit's ruling.

As for time spent waiting to don the protective gear, the Supreme Court explained that waiting may be necessary (in other words, "integral and indispensable" and, therefore, compensable) to some employees' principal activities, but not in this case. Finding that the waiting time was "preliminary" in that it was like time employees spend walking from a time clock to a workstation, which is generally not compensable, the Court ruled that the time spent waiting to don the protective gear also was not compensable.

The Court explained, however, that its ruling would be different if "Barber required employees to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed...." In such a case, the employees would be engaged to wait, which would be compensable as an integral part of the employee's principal activities.

The Court reached a different conclusion as to time spent by employees waiting to doff their protective gear at the end of the work shift, ruling that this was not simply "postliminary" but instead "integral and indispensable" to the employees' "principal activity." Therefore, the Court said that "the continuous workday rule mandates that time spent waiting to doff" is compensable work time under the FLSA.

Employers with questions regarding these or other factual situations raising the issue of paid versus unpaid time for non-exempt employees are encouraged to contact their employment counsel.