Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As employers are well aware, numerous jobs require employees to wear personal protective equipment (PPE) under Occupational Safety and Health Administration regulations when employees are exposed to workplace hazards. For example, 29 Code of Federal Regulations 1910.132 requires employers to conduct a workplace hazard assessment and to provide PPE as well as employee training in the use of PPE.
A recent decision of the U.S. Supreme Court has recognized that an employer may have liability to pay wages to an employee for the time spent “donning and doffing” this PPE, as well as for time spent by the employee walking between the locker room and the job station when the employee begins his/her principal job activities. This time may be compensable under the Fair Labor Standards Act (FLSA) as part of the employee’s “workweek.” Failure to pay these wages, if compensable, particularly if they result in extending the workweek to more than 40 hours (in which case overtime wages would also be payable), can expose the employer to liability for the unpaid wages, and an additional equal amount as liquidated damages.
Decision
The underlying case, IBP v. Alvarez, was a consolidation of two separate actions in which employees were seeking compensation for the time spent donning and doffing PPE in the locker room and for the time spent walking from the locker room to their job station. In IBP, the action was brought by meat processing employees seeking compensation for donning and doffing required PPE and for time walking from the locker room to the shop floor. The companion case, Tum v. Barber Foods, was brought by poultry processing employees for the same compensation, as well as additional payment for time spent waiting or walking to don PPE.
Generally, under another federal statute, the Portal-to-Portal Act of 1947 (which amended the FLSA), walking to and from the place of the employee’s “principal activity or activities” and work that is “preliminary or postliminary” to such principal activities, is not compensable. However, if these activities are “an integral and indispensable part of the principal activities,” they would fall within the employee’s “principal activity or activities” and are compensable.
PPE as Part of Principal Activity
In reaching its determination of whether the wearing of PPE constitutes an integral and indispensable part of the employee’s principal activities, the Court looked at the particular PPE that would be required (including outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings and boots, and, in some cases, protective equipment for hands, arms, torsos, and legs involving chain link metal aprons, vests, Plexiglas arm bands, and special gloves). Because of the “unique” nature of this gear and the necessity that it be worn by the employee to perform the job and to comply with safety and sanitation regulations, the Court found that donning and doffing this equipment was in fact part of the employee’s “principal activities,” and the time expended was compensable.
The Court was clear to point out, however, that not all time spent donning and doffing PPE is compensable; for example, where the PPE is “non-unique,” such as hardhats and safety goggles, the time spent is considered “de minimis” as a matter of law, and is not compensable.
Compensation for Walking To and From the Job Station
Since the Court determined that donning and doffing the extensive PPE required by IBP and Tum was part of the employee’s principal activities, once the employee engaged in this activity, this triggered the requirement to compensate the employee for time spent walking to and from the locker room to the job station. It should be noted that, generally, employers are not required to compensate employees for this walking time to and from the locker room, absent these circumstances.
The employees in the Tum case also sought payment for the time spent waiting and walking to the locker room prior to donning the first piece of PPE. The Court held that this time is not compensable since it generally falls within the definition of “preliminary” activities in the Portal-to-Portal Act.
Recommendations
The Court’s decision does not establish any new legal principles but is a useful guidance for employers as to determining where there is an obligation to compensate employees for this time. The question remaining after the decision, however, is the extent to which donning clothing, gear, or equipment is integral or indispensable to principal activities. Employers should continue to compensate their employees for both putting on protective gear that is comparably burdensome as the gear worn by the employees in IBP and the subsequent walk to work stations. If the protective gear is less burdensome than those donned and doffed in IBP, however, then donning and doffing activities may not be compensable. In such a case, neither is the time spent walking to work stations. And no matter how burdensome the donning and doffing, employers need not compensate employees for the time they spend waiting to don protective gear under IBP.
Labor and the Law - February 2006 Render