Publication

September 2007Newsletter

Are You Paying Your Employees for Their Time Spent “Donning and Doffing” Equipment Before and After Their Shift? The Latest FLSA Class Action Trend

Employment Law Express

On September 6, 2007, the Third Circuit Court of Appeals gave FLSA class action plaintiffs a new analysis to create or increase employer liability. De Asencio v. Tyson Foods Inc., Case No. 06-3502 (3d Cir. Sept. 6, 2007). Interpreting a 2005 Supreme Court opinion, the Third Circuit held that the time spent by Tyson Food’s chicken processing plant employees putting on, taking off and washing “a smock, hair net, beard net, ear plugs and safety glasses” at the end and beginning of their shifts qualified as compensable work under the FLSA. This, of course, means that the employer must pay the employees at least the statutory minimum wage for all time spent performing such “work” and further, must count the time against the 40-hour threshold for overtime purposes. The Third Circuit held that the “donning and doffing” (“donning and doffing” is a legal term that means putting on and taking off) of equipment constitutes “work” when the employer controls or requires that the equipment be worn and the equipment is for the primary benefit of the employer. The Third Circuit acknowledged that other FLSA exceptions may apply that would make the employees’ “donning and doffing” time non-compensable. For example, the so-called “Section3(o) exception” may apply if management has agreed with a union under a collective bargaining agreement, or in custum and practice, that such time is not compensable.

The Third Circuit’s decision is the first of its kind and runs contrary to a recent decision from the Second Circuit. On May 30, 2007, the Second Circuit held that “donning and doffing” a helmet, safety glasses and steel-toed boots did not constitute “work” under the FLSA. The Second Circuit reasoned that “donning and doffing” a helmet, safety glass and steel-toed boots are relatively effortless, non-compensable, preliminary tasks primarily for the employee’s benefit.

No court within the Seventh Circuit, which includes Wisconsin and Illinois, has ruled on this particular issue. Plaintiffs’ FLSA class action counsel likely will test the Third Circuit’s reasoning here. Indeed, a “donning and doffing” FLSA collective action was recently filed in the U.S. District Court for the Western District of Wisconsin. Wisconsin and Illinois employers that require safety or other job-specific equipment to be worn should consider either paying their employees for their time spent “donning and doffing” the equipment, or contacting counsel for a more detailed analysis of potential alternatives.

For more information, please contact Brian P. Paul at 312.527.6843, or bppaul@michaelbest.com.

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