“Donning and Doffing” Cases Under the FLSA

Kayla Moreland , May 13, 2015

The Fair Labor Standards Act (“FLSA”) requires that employees be paid for all hours worked.  But what constitutes “compensable work?”  The answer may seem straightforward, but it can become confusing when considering certain activities that happen before your shift begins or after the formal end of your typical workday.  Think about all the various types of protective clothing or gear you may be required to wear for your job—hardhats, safety glasses, earplugs, gloves, aprons, hairnets, special shoes, etc.  Should you be getting paid for the time it takes you to put on or take off required clothing?  That has been the issue in many recent “donning and doffing” cases.  In those types of cases, employees contend that they should be paid for the time spent changing into and out of required clothing or protective gear, as it is part of their continuous workday.

Generally, activities that are “preliminary” or “postliminary” to your principal work activity are not compensable, such as the time spent traveling to and from your workplace.  This came from the 1947 Amendment to the FLSA, the “Portal-to-Portal Act.”  Since then, courts have held that activities performed before or after the scheduled workday are compensable if they are “integral and indispensable” to an employee’s principal activity.

To determine whether an activity meets this requirement, you can ask yourself these 3 questions:

• Is this required to be worn?

• Is it for the primary benefit of my employer?

• Is it necessary for my work?

Whether an activity is compensable work will generally depend on your job position and specific industry. Even if it seems like a small amount of time, is important to be aware of these issues.  Whether you are required to pass through security screenings, put on safety gear, or perform any other type of pre-shift or post-shift activity, your unpaid work will add up over the months and years.

Questions? Learn more at www.barkanmeizlish.com.

Source:  Joseph E. Gumina & Erica N. Reib, A primer for inside counsel on donning & doffing under the FLSA (March 20, 2015) http://www.insidecounsel.com/2015/03/20/a-primer-for-inside-counsel-on-donning-doffing-un?ref=nav

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