Should employees be compensated for the time they spend putting on and taking off protective clothing prior to or after a work shift?
There is a bit of controversy over this issue, especially when it takes a while to “don” and “doff” the garb. Although there have been several decisions rendered from U.S. District Courts, there has not been unanimous agreement as to whether employees should be compensated in all cases.
In particular, food processing and ag-product companies in Wisconsin and elsewhere are keeping an eye on court rulings pertaining to this issue, which is known in industry circles as “donning and doffing.” Protective clothing can include foot, hand, and headwear that takes a period of time to put on, and employees seeking compensation for time spent putting on work clothing have brought lawsuits against companies nationwide.
For a look at legal precedents, IB spoke to Dan Kaplan, a partner in Foley & Lardner’s Madison office, Kaplan, who works in the firm’s Labor and Employment Practices Group, has worked on “donning and doffing” cases.
IB: What, if any, legal definition has occurred so far?
Kaplan: There are a lot of cases that impact the donning and doffing litigation that’s out there, depending on where you’re located in the country. We had a decision that came down recently from the Fourth Circuit Court of Appeals [covering West Virginia, Virginia, Maryland, North Carolina, and South Carolina], which doesn’t apply to Wisconsin but a lot of the appellate courts look at what their sister circuits do, and so it may be influential here. That decision recognized that where an employer has a Collective Bargaining Agreement with its employees that covers compensation for clothes changing and the donning and doffing things that we’re talking about, that courts should respect that CBA. The court noted that it’s really important to recognize that the employer and their employees are in a much better position to decide what kind of benefits they want or don’t want or are willing to give up in return for compensation, than to have some court decide such matters.
IB: What about a definitive ruling outside the CBA?
Kaplan: The law outside Collective Bargaining Agreements has been up in the air only to the extent that there are some questions on whether or not the time involved in the donning and doffing activites is sufficiently substantial to justify compensation or require compensation.
IB: What’s sufficiently substantial enough?
Kaplan: Half an hour is definitely enough. But the time involved in donning and doffing can range from a few minutes to much more than a few minutes. To address those instances where the amount of time involved is not viewed as sufficiently substantial, courts developed a doctrine under the Fair Labor Standards Act (the federal wage and hour law), called “De Minimis Doctrine.” Under the “De Minimis Doctrine, time is difficult to capture because people do it differently, they go at different paces, or it’s just not real easy to capture due to vagaries in the workplace, and where the time involved is a truly lesser amount. Courts have historically considered a few minutes a day, or up to 10 minutes in some cases, to be the truly “lesser” amounts that need not be compensated when that time is difficult to capture.
Another doctrine that has been applied which has resulted in donning and doffing time not being compensated is where there is a determination that the donning or doffing activities are preliminary to the work day or postliminary to the work day. Under this “Preliminary/Postliminary” doctrine, the question is whether or not those activities are indispensable and necessary to the actual work that the employee performs for the employer. Where the donning and doffing is indispensible and necessary, then the time spent donning and doffing will not be considered preliminary or postliminary.
IB: What’s your advice to companies about how to handle this and ward off litigation? Have a policy that says anything beyond 15 minutes has to be compensated?
Kaplan: I think it’s hard to say that it automatically has to be compensated if it’s beyond 15 minutes. I think employers need to review their policies on donning and doffing, and determine whether or not the donning and doffing has to take place in the workplace. For example, if employees are permitted to take their work clothes home with them, put them on at home and come to work dressed, there shouldn’t be a compensable activity there. So you need to look at what are the articles [of clothing] or items that have to be donned or doffed, and evaluate whether or not employees can take them home with them, or you’re going to require employees to do it at work, and review the amount of time that it normally takes for employees to do that kind of stuff — the donning and doffing — and also determine whether or not that type of clothing, or the articles, are indispensable to the employee performing his or her job.
IB: You mentioned the state laws mirror the Fair Labor Standards Act. What does Wisconsin’s law say in this area? Does state law address this at all?
Kaplan: The Fair Labor Standards Act has a specific clause that talks about clothes changing in the context of where an employer and employee have a collective bargaining relationship. Wisconsin does not have that same clause in its law, and that issue is currently pending before the Seventh Circuit Court of Appeals. That’s the federal appellate court that oversees Illinois, Wisconsin, and Indiana, and that court is going to decide if the federal law essentially trumps the state law with respect to that issue.
IB: Any idea of when that ruling will come down?
Kaplan: I would expect that ruling within the next three to six months.
IB: Are there any other points you want to make on this topic?
Kaplan: The wage-and-hour lawsuits that are taking place or being filed are much more prevalent today. Class action and collection action cases in wage-and-hour litigation is much more prevalent than discrimination litigation that’s occurring right now. There are more class and collective wage and hour suits filed than class discrimination cases of all the various sorts filed together. This is a very hot area. Wage-and-hour litigation is probably the most volatile area of active employment litigation.
IB: Is that because of the furloughing and other responses to the economy?
Kaplan: That’s part of it, but it’s also because the Fair Labor Standards Act allows for doubling of damages if you’re successful. It also allows for attorney fees, as I think a lot of people assume that attorney-fee provisions tend to drive a lot of plaintiff litigation. So these damage numbers, they are the largest damage numbers and settlement numbers that you find out there. In calendar year ’08 and ’09, there were settlements and verdicts than ranged anywhere from $28.5 million here in Madison, Wisconsin, to $110 million, or the large Wal-Mart litigation, which had I think an estimated settlement value of close to $700 million.
The damage figures are huge, and that’s what’s really driving wage-and-hour litigation. That’s become very popular, especially in the health care industry.
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