The Latest on Donning and Doffing under the FLSA: To Pay or Not to Pay

The Latest on Donning and Doffing under the FLSA: To Pay or Not to Pay

by Matthew B. Hansberry

As most employers know, there has been considerable litigation under the Fair Labor Standards Act ("FLSA") over the years regarding whether employers must pay employees for time spent putting on and taking off (i.e, "donning and doffing") various types of gear during the workday.  Because donning and doffing is always a hot topic in the context of employment law, the recent opinion of the Fourth Circuit - the federal appellate court that covers West Virginia, Maryland, Virginia, North Carolina, and South Carolina - in Perez v. Mountaire Farms, Inc. [an enhanced version of this opinion is available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] is an important one all employers in the region need to be aware of.

In Perez, employees of Mountaire Farms, Inc. ("Mountaire"), a company that operates chicken-processing plants, brought a collective action against Mountaire for alleged violations of the FLSA.  The employees claimed that Mountaire violated the FLSA by, among other things, not paying them for time spent donning and doffing their protective gear during the workday.

Citing to a well-established case handed down by the U.S. Supreme Court, the Fourth Circuit in Perez held that "[p]reliminary and postliminary activities are compensable . . . if they are an 'integral and indispensable part of the [employee's] principal activities.'"  Interestingly, prior to Perez - and unlike many other Circuits - the Fourth Circuit had never applied the "integral and indispensable" test.

Under Mountaire's company rules (and under federal regulations), employees who worked on the production line were required to don certain protective gear before starting their respective shifts.  Their work involved the butchering and processing of chickens.  To do that, employees had to wear - among other things - smocks, hair and beard nets, ear plugs, plastic hats known as "bump caps," and steel-toed rubber boots.

After donning their protective gear, the employees would enter the production area, where they were required to sanitize their protective gear by walking through a foot bath and by splashing sanitizing solution on their aprons.  Employees who wore gloves were required to dip their gloves in a sanitizing solution, while employees who were not required to wear gloves had to wash their hands.

Of course, at the end of their respective shifts, before leaving work, the employees would have to remove their protective gear.  In doing so, they usually placed their soiled smocks in hampers located at their workplace.  They stored the remainder of their protective gear in lockers provided by Mountaire.

Ultimately, the Fourth Circuit concluded that the employees' acts of donning and doffing protective gear at the beginning and end of their work shifts - activities which took each plaintiff-employee approximately ten minutes to complete - were "integral and indispensable" to Mountaire's chicken processing and were primarily for Mountaire's benefit.  In light of this conclusion, the Fourth Circuit found that Mountaire violated the FLSA by not compensating the employees for their time spent doing this at the beginning and end of their respective shifts.

The Court had more to decide in Perez, however.  Certain Mountaire employees also claimed that they were not paid for their time spent donning and doffing this equipment not just before and after work, but also before and after their meal breaks.

Because of their exposure to blood and other chicken products, at least some of Mountaire's employees would take off their protective gear in order to take meal breaks.  Obviously, those employees would have to once again don their protective gear before reentering their respective work areas.  These employees felt that they should be compensated for this time.  However, contrary to its opinion about the compensability of the time these particular employees spent taking on and off their gear at the beginning and end of the work day, the Fourth Circuit felt that doing the same thing before and after a break in this industry was not compensable.

It's important to note that the Fourth Circuit's conclusions about whether these employees were entitled to be paid for the time putting on and taking off their equipment before and after work, and before and after breaks, because doing so was an "integral and indispensable" part of an employee's principal activities, was industry-specific.  Put another way, the court's decision does not extend to all employers whose employees don and doff gear before and after work and before and after meal breaks - only those in poultry-processing.

In addition to offering some much-needed guidance relative to the issue of donning and doffing in the Fourth Circuit, the Perez decision serves as a reminder that litigation on the subjects of donning and doffing is unique to each industry.  While that puts employers in a tough position because the ground rules are not always the same, all hope isn't lost.  In most cases, a good measuring stick to use is that if the acts of donning and doffing are necessary to the employer's operations and are for the primary benefit of the employer, then time spent carrying out such acts is likely to be compensable under the FLSA.

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