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March 09, 2010
Must Employees Be Paid for Donning and Doffing?

A large group of workers at a Delaware chicken processing plant sued their employer, demanding compensation for the time they spent putting on protective gear at shift start and removing it when the shift was over. They felt that the Fair Labor Standards Act (FLSA) mandated such compensation.

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What happened. Three workers for Allen Family Foods filed the initial suit in January 2007, and were then joined by 250 other production line workers. The plant’s practice had historically been to pay employees only for their time on the line—neither for a 30-minute lunch break, which also required removing some of their gear, washing it, and putting it back on, nor for those activities at the start and end of each shift.

But the key to this case was that the collective bargaining agreement between the employees’ union, the United Food and Commercial Workers, and Allen Family Foods had historically contained a provision that workers would not be paid for those off-line activities. In fact, the union had proposed in 2002 that employees be paid for 12 minutes each day to perform the donning and doffing. But the company did not accept the proposal, nor did the union pursue it.

The workers sued, believing that putting on the gear and removing it twice a day was integral to their principal activities and should thus be compensable under FLSA. A judge in a Maryland federal district court, however, dismissed their suit in Allen Family Foods’ favor. The workers appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

What the court said. Appellate judges referred specifically to Section 203(o) of FLSA, which they noted had been added to the law by Congress after a rash of lawsuits in the 1940s. The purpose of the addition, they said, was to encourage unions and employers to bargain about the question of whether workers should or should not be paid for donning and doffing. The opinion read, in part, “A union, for instance, may be willing to trade off compensation for changing clothes in return for … higher hourly wages, enhanced benefits, or improved working conditions.”

Judges agreed that donning or doffing the gear—shoes, smocks, aprons, gloves, earplugs, arm shields, and safety glasses—could be considered “changing clothes.” Thus, it is an activity that can be bargained under FLSA. Sepulveda et al. v. Allen Family Foods, U.S. Court of Appeals for the 4th Circuit, No. 08-2256 (12/29/09).

Point to remember: If employees are not unionized, or belong to a union that doesn’t bargain the issue, they may be entitled to compensation for donning and doffing under FLSA.


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