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Are You Paying Employees Properly For All Time Worked?
Department of Labor Administrator’s Interpretation on Donning and Doffing Activities
 
When work starts and when employers need to begin paying employees has long been an area of wage and hour law in which disputes arise between employees and employers. One type of dispute involves if and when employers are required to pay employees for the time it takes to put on and remove (don and doff) protective gear or clothing that is required for the job. To further complicate matters, even if the terms of a collective bargaining agreement dictate how employees are compensated for donning and doffing activities, those terms may be in violation of state or federal law. Section 203(o) of the Fair Labor Standards Act (FLSA) 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. 29 U.S.C. § 203(o).
 
2010 Department of Labor (DOL) Administrator’s Interpretation
To assist employees and employers in all industries to better understand the scope of the § 203(o) exemption and of whether clothes changing covered by § 203(o) is a principal activity, the DOL conducted a review of the interpretation of the term “clothes” in § 203(o) of the FLSA, and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues. A recent Administrator's Interpretation, No. 2010-2, issued by the DOL’s Wage and Hour Division, reversed prior DOL positions and advised that clothes changing covered by § 203(o) may be a principal activity and, where that is the case, subsequent activities, including walking and waiting, are compensable.
 
Prior DOL Opinion Letters and Litigation
This interpretation followed a thorough analysis of the statutory provision and a comprehensive review of the legislative history and case law and prior opinion letters, including those from 1997, 2002 and 2007. In its 1997 Opinion Letter, the DOL advised that time spent putting on, taking off and cleaning the protective equipment utilized in the meat packing industry was compensable and that the protective equipment did not constitute "clothes" under § 203(o). However, the 2002 Opinion Letter, which advised that “clothes” under § 203(o) included the protective equipment typically worn by meat packing employees, was reaffirmed in a 2007 Opinion Letter. The 2002 opinion letter further specified that the equipment worn by meat packing employees is clothing by referring to cases and regulations that include “face shields” and “impermeable gloves” as “protective clothing.” However, in subsequent litigation, not only could neither the plaintiffs nor defendants agree on a common definition of the word “clothes,” the majority of district courts rejected the 2007 Opinion Letter.
 
Some guidance was provided in the 2005 U.S. Supreme Court decision in IBP v. Alvarez, in which the Supreme Court explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. Based on this ruling, 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.
 
Recent Court of Appeals Decision
On August 2, 2010, the Seventh Circuit Court of Appeals upheld a $2.2 million judgment in which Kraft/Oscar Mayer lost its case involving donning and doffing issues even though the company and its union, the UFCW, negotiated and agreed to forgo pay regarding the donning and doffing; arguably this agreement should have protected the employer under the FLSA, Section 203(o). The Seventh Circuit in Chicago (which covers lawsuits in Wisconsin, Illinois and Indiana) is the first federal appeals court to decide the preemption argument. The company argued that the collective bargaining resolution superseded rules that would otherwise apply to determine the number of hours an employee works. However, Judge Easterbrook decided that the process did not preempt state law and, because state law trumps the collective bargaining agreement, Kraft/Oscar Mayer has to compensate employees for the time it takes to put on and take off safety and protective gear, such as steel-toed boots, hard hats, and a smock that keeps other garments clean, as well as required hair nets and beard nets to protect the food. The company will have to pay employees for a few minutes both before and after their shift.
 
What Employers Should Do
Employers should review pay practices, whether negotiated or not, and determine which state laws apply and what exposure the organization, whether union or non-union, might have. As always, if I can help you or answer any questions, give me a call or e-mail me. Thanks.
 
 
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at: tpk@kclegal.com
 
 
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/
 
Legislative Partner

Krukowski &
Costello
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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