Paying employees for hours “worked” can be more difficult than it appears at first glance. Over the past half century, courts have confronted difficult issues regarding when the “workday” starts and ends. One common issue is whether employees are “working” (and thus must be paid) for time spent putting on or taking off (“donning and doffing”) protective gear. For example, on Jan. 30, a Nebraska federal judge entered a judgment for $18.8 million against Tyson Foods, Inc. for failure to pay its employees for time spent donning and doffing protective gear.
Generally, federal law does not require employers to compensate employees for activities which are preliminary or postliminary to the employees’ principal activities. Under this rule, employers do not need to compensate employees for donning and doffing protective gear (or otherwise changing clothes) when these tasks are performed under normal conditions and before or after the employees’ workday.
There is an exception, however, when such donning and doffing is integral and indispensable to the employees’ principal work activities. For example, in Steiner v. Mitchell, the United States Supreme Court held that the battery plant was required to compensate its employees for time spent changing clothes before their shift. The court ruled that “activities performed either before or after the regular work shift, on or off the production line, are compensable … if those activities are an integral and indispensable part of the [employees’] principal activities.”
Based on the specific facts of that case, the court found that changing clothes was an “integral and indispensable part” of the employees’ principal activities, emphasizing, first, that the employees were required to change clothes due to serious health and safety risks at the plant, and, second, that state law required the employer to provide facilities for changing clothes.
After the Steiner decision, the federal circuit courts developed various tests for determining whether an activity is “integral and indispensable” to employees’ primary work activities. The Second Circuit, which encompasses New York, adopted a narrow view of the phrase “integral and indispensable.”
In Gorman v. Consolidated Edison Corp., the Second Circuit ruled that a nuclear power station did not need to compensate its employees for time donning and doffing helmets, safety glasses and steel-toed boots. The Second Circuit noted that donning and doffing this protective gear was arguably indispensable but determined that it was not integral to the employees’ principal activities.
The court explained that an activity is not integral simply because it is required by the employer or the government. According to the Second Circuit, “Steiner supports the view that when work is done in a lethal atmosphere, the measures that allow entry and immersion into the destructive element may be integral to all work done there …” The court explained that, unlike Steiner, the employees in the Gorman case were donning and doffing generic protective gear in a non-lethal environment. Thus, the donning and doffing was performed under normal conditions and, therefore, was not compensable.
The United States Department of Labor has criticized the Second Circuit’s decision in Gorman. The DOL’s position is that employers must compensate employees for time spent changing clothes on the employer’s premises if it is required by law, the employer or the nature of the work. However, if employees have the option to change at home, the DOL does not consider changing time compensable, even if the employee opts to change on the employer’s premises.
Even where time spent changing clothes is normally compensable, Section 203(o) of the Fair Labor Standards Act provides that employers may bargain collectively over whether that time is compensable. On Jan. 27, the Supreme Court addressed whether an employer was required to compensate employees for donning and doffing protective gear when the applicable collective bargaining agreement provided this time was not compensable.
In Sandifer v. United States Steel Corp., the employees sought backpay for time spent donning and doffing protective gear — i.e., flame-retardant jackets, pants, hardhats, hoods, “snoods” (hoods that cover the neck and shoulder area), “wristlets” (detached shirt sleeves), work gloves, leggings, steel-toed boots, safety glasses, earplugs and respirators. The collective bargaining agreement provided that the time spent donning and doffing these items was not compensable.
The Seventh Circuit ruled that, in the absence of the collective bargaining agreement, the employer was required to compensate the employees for the time spent donning and doffing the protective gear. The employer did not challenge this finding before the Supreme Court.
Before the Supreme Court, the employees argued that Section 203(o) did not apply (and that the collective bargaining agreement did not govern compensability) because donning and doffing protective gear did not qualify as “changing clothes.” The court unanimously disagreed and defined clothes as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”
Applying its definition of “clothes,” the court concluded the first nine items of protective gear clearly constituted clothes. The court then considered whether the time spent donning and doffing the remaining three items (safety glasses, ear plugs and respirators) was compensable. The court noted that it was unlikely that Congress intended for Section 203(o) to “convert federal judges into time-study professionals” and decided that the time period should be evaluated as a whole to determine if it was time spent “changing clothes.”
Thus, if employees spent the “vast majority” of the time donning and doffing “clothes” (as opposed to other items), then the entire period was subject to Section 203(o). Applying this test, the court decided that the time spent donning and doffing the safety glasses and earplugs was minimal and therefore the entire period was spent “changing clothes” under Section 203(o).
The court also noted that the employees donned and doffed the respirators as needed rather than before or after their shifts, so Section 203(o) was not applicable to the respirators. When protective gear is donned or doffed mid-shift, employers must compensate employees for that time.
For union employers, the Sandifer decision clarifies when they may bargain about the compensability of time spent donning and doffing protective gear. The Supreme Court ruled that Section 203(o) covered many types of protective gear but may not extend to (1) accessories that are not both designed and used to cover the body (such as necklaces and knapsacks) or (2) tools that are not commonly regarded as articles of dress.
For non-union employers (and union employers without a collective bargaining agreement that makes time spent “changing clothes” not compensable), the general rule continues to apply. These employers must compensate employees for donning and doffing protective gear and other clothes at the beginning or end of the workday only where this activity is “integral and indispensable” to their primary work activities.
New York employers may continue to rely on the Second Circuit’s narrow view of “integral and indispensable,” until the Supreme Court resolves the current split in the circuit courts on this issue or the Second Circuit revisits its Gorman decision.
Want to learn more? This and other hot topics in employment law will be covered at the NHRA/SHRM sponsored Legal Update on Tuesday, Feb. 11. Visit www.humanresources.org for more info.
James Holahan is one of more than 70 lawyers at Bond Schoeneck and King PLLC devoted to providing labor, employment law, employee benefits, executive compensation and immigration services to management. Kate McClung is also a labor and employment law attorney at Bond Schoeneck and King PLLC. She counsels employers in a wide variety of matters, including responding to claims of employment discrimination and retaliation and providing advice on wage and hour laws and leaves of absence. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning and leadership of HR professionals. Visit www.humanresources.org for more information.