Donning and Doffing

posted on:
October 22, 2008

author:
Staff

category:
Fraud

What is donning and doffing?

According to the Fair Labor Standards Act (FLSA), which was established in 1938 to establish workers’ rights, the term “donning and doffing” is used to refer to the practice of putting on (donning) and taking off (doffing) protective gear, clothing and uniforms. There are certain circumstances where employers are legally required to pay their employees for time spent donning and doffing.

Additionally, the Portal-to-Portal Act, adopted by Congress in 1947, established requirements for employee compensation that includes “all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.”

The Fair Labor Standards Act of 1938 establishes minimum wage, overtime pay, record-keeping and child labor standards for nearly all full-and-part-time workers in the United States. Employers also must comply with any state laws dealing with days of rest, equal pay, minimum wage and child labor provided that such laws are more favorable to employees than the FLSA.

Under the Portal-to-Portal Act, a compensable workday consists of principle work activities that are:

  • Duties performed as part of your regular work in the ordinary course of business, and
  • Activities that are an integral part of or are indispensable to your regular duties

Examples of activities during regular work hours that generally are compensable include: coffee breaks; fire drills; meal periods if the employee is not relieved of all duties, if the employee is not free to leave his post, or if the time is less than 30 minutes; and, rest periods of 20 minutes for less.

Examples of non-compensable time during regulate work hours include: absence for illness or vacation, unless paid on salary basis; meal period while on out-of-town business; training programs if attendance voluntary and not directly related to employee’s present job; and, travel from home to work site and vice versa.

Generally, FLSA law stipulates that time spent donning and doffing specialized protective gear is compensable time. However, courts may have different opinions about whether time spent donning and doffing protective gear that is not unique or specialized must be compensated.

What is an example of a donning and doffing case?

A common type of claim in FLSA collective actions is for unpaid wages or overtime for time nonexempt employees spend donning and doffing.

Donning and doffing cases usually involve industries where employees are required to put on and take off protective clothing as a prerequisite for doing their job, but companies do not pay employees for the time spent donning the protective gear and/or doffing the protective gear at the beginning and ending of a shift, or during break periods throughout the workday. However, in these cases, most of the time the protective clothing is not only required, it is often an essential part of the production process that guarantees the quality of the product.

According to the U.S. Department of Labor, “Generally, donning and doffing, which may include clothes changing, can be a ‘principal activity’ under the Portal to Portal Act, 29 U.S.C. § 254. IBP v. Alvarez, 546 U.S. 21, 30 (2005). The Supreme Court in Alvarez 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. Alvarez, 546 U.S. at 37.

“Thus 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. Id. at 37.”

Industries where we typically see donning and doffing litigation include:

  • Poultry processing facilities
  • Beef packing facilities
  • Other agricultural industries

We have also seen litigation in industries where the protective clothing is essentially safety gear for hazardous activities.

What can I do?

Our firm represents people who have been taken advantage of in the workplace, through violations of the Fair Labor Standards Act (FLSA). In these cases, employers intentionally misclassify employees as independent contractors or managers in order to reduce costs such as overtime compensation, employee benefits, payroll taxes, unemployment compensation and workers compensation.

If you feel you have a case where your employer is in violation of the Fair Labor Standards Act, you may have a claim. For a free legal consultation, contact us today.

Sources:

Practical Law Company
HR Resource
U.S. Department of Labor

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