• Cullen and Dykman LLP Blogs

  • Archives

  • When Must an Employer Compensate its Employees for Time Spent Donning and Doffing?

    Donning and doffing refers to changing into and out of work clothes, gear, or equipment. To don means to put on work clothes, gear, or equipment. To doff means to take off work clothes, gear, or equipment.

    While both federal and state laws require that employers compensate employees for all “work” performed, both federal and state law interpret what it means to don and doff quite differently.

    So when exactly is donning and doffing compensable under the FLSA?

    The Portal-to-Portal Act, adopted by Congress in 1947, established that an employee must be compensated for “all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.” Under the Portal-to-Portal Act, it is essential to take into consideration whether the donning and doffing was an “integral and indispensable” part of the principal activity of the employment.

    In the context of the Fair Labor Standards Act of 1938, 29 U.S.C.S. § 201, under the Ninth Circuit’s definition, donning and doffing of protective gear at the beginning and the end of a work shift are acts “integral and indispensable” to the employer’s principal activity when the donning and doffing are (1) necessary to the principal work performed; and where the (2) primarily benefit is to the employer.

    In addition, an act is also necessary to a principal activity where it is required by law, by company policy, or by the nature of the work performed.

    In IBP, Inc. v. Alvarez, employees argued that they were entitled to compensation for time spent walking to their work areas after donning protective gear and for time spent waiting to don the gear. IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S. Ct. 514 (2005). In regards to cutting and bagging meat, protective gear such as outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots were required. The U.S. Supreme Court unanimously held that since donning and doffing the protective gear was integral and indispensable to the employees’ principal activity, donning and doffing was itself a principal activity, and thus walking to and from changing and work areas were part of the workday.  Hence employees were entitled to compensation.

    Cases for donning and doffing usually arise where employees are required to put on and take off protective clothing as a prerequisite for doing their job such jobs may include but may not be limited to poultry processing facilities, police uniforms, beef packing facility, or other agricultural industries.

    It should also be noted that if the time to don and doff is excluded from compensable time pursuant to “the express terms or by custom or practice” or if employers and unions mutually agree that time spent changing clothes is not compensable under a collective bargaining agreement, employees will not be compensated for donning and doffing.

    In Sandifer v. U.S. Steel Corporation, employees of U.S. Steel’s Gary, Indiana plant were demanding back-pay for time spent donning and doffing 12 items of protective gear. Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014). This protective gear included a flame-retardant jacket, a pair of pants, a hood, a hardhat, a snood, wristlets, work gloves, leggings, and boots of which the donning and doffing were determined to be compensable.  The safety glasses, earplugs and,  a respirator were not considered “clothes” and the court ruled that the time utilized to don and doff these items was not compensable.

    Generally, the time spent engaging in donning and doffing is normally compensable under the FLSA when done during work hours but in Sandifer, the collective bargaining agreement between the workers’ union and the company provided that it was not. The Court confirmed that employers and employees may decide through collective bargaining whether or not donning and doffing time will or will not be compensable.

    The issue of whether donning and doffing should be compensable continues to be heavily litigated. Several jurisdictions have held that donning and doffing is not compensable if done before or after work, while other jurisdictions have held that donning and doffing is compensable even if done before or after work if the employee’s actions are “integral and indispensable” to the employer’s business.

    In Gorman v. Consol. Edison Corp, the Second Circuit held that donning and doffing protective gear was not compensable because it is no different from changing clothes and showering under normal conditions which are not covered by the FLSA. Gorman v. Consol. Edison Corp., 488 F.3d 586, 589 (2d Cir. 2007). Similarly, in Adams v. Alcoa, the Second Circuit denied employees compensation under the FLSA for time spent donning and doffing protective gear on the premises because they were not required to don and doff their gear at the facility. Adams v. Alcoa, Inc., 822 F. Supp. 2d 156, 157 (N.D.N.Y. 2011).

    Since this area of law is very unsettled, a case by case analysis is required to determine whether donning and doffing is compensable.

    Employers are thus encouraged to use clear and specific language within their collective bargaining agreements to avoid litigation over whether employers must compensate employees for time spent donning and doffing.

    Employers are also encouraged to review their company policies and procedures in regards to whether to not the employer requires its employees to change in and out of uniforms at work in which case donning and doffing may be compensable.

     

    If you, or your institution, have any questions in regard to when donning and doffing may be compensable under the FLSA, please contact Cynthia A. Augello at caugello@cullenanddykman.com or via telephone at 516-357-3753.

    Thank you to Kuljit Kaur, a law clerk with Cullen and Dykman LLP, for her assistance with this post.