Paying for safety

Jan. 7, 2013
In this edition of In the Trenches, Acme wonders if workers should get dressed and undressed while they're on the clock.

Acme’s widget assembly plant requires all employees on the production floor to wear protective boots, clothes, and goggles at all times. Employees put their gear on in the locker room, where they each have their own lockers and space to store their clothing and personal belongings. Once dressed for work, employees walk to the production floor a few hundred feet away and then clock in to start their shifts. They typically get to work 15 minutes before their shift starts each day to “gear up.” Changing out of the required gear takes another 10-15 minutes after their shift ends.

Wendy Weiner has been wondering why Acme doesn’t pay her for the time that it takes to don and doff the required gear and walk to and from the production floor at each shift. Her husband works for Wackme, a wacket manufacturer; and he clocks in before putting on protective gear and doesn’t clock out until he’s back in street clothes. Wendy had complained on several occasions to her supervisor, Myron Milde, about the company’s “time theft,” but Myron shrugged it off. So Wendy has begun coming on the floor in her street clothes to clock in each morning, and then heading to the locker room to gear up. When Myron issued a verbal warning to Wendy about her failure to adhere to proper clock-in and safety procedures, Wendy began yelling, loud enough for her coworkers to hear: “What Acme is doing is illegal.” Shel Shortfuse, the plant manager, heard the commotion and confronted Wendy, who repeated her contention that Acme was violating the law. Shel assured Wendy that she was properly compensated for every hour she worked and, in light of her outburst and insubordination, sent her home for the day.

“We cannot let a problem employee violate clock-in policy and start riling up her coworkers with this nonsense,” Shel sternly told Myron. “You need to terminate her now, before she calls the Department of Labor and we have to deal with a formal complaint.” Myron dutifully complied. When Wendy came to work the following day, she was told to pack up her things and was issued her final paycheck, which did not include compensation for the donning and doffing time that Wendy sought to capture through her rogue clock-in scheme. Wendy filed a lawsuit alleging minimum wage violations, and she tacked on a retaliation claim for good measure.

A labor and employment analyst’s response:

Wendy may be whining with good reason. Is Acme supposed to pay her for her “donning and doffing” time? It depends. If she were merely changing clothes on-site at her own option because she didn’t want to get her street clothes dirty, because she was super risk-averse and wore protective gear that wasn’t mandated, or because she didn’t want to wear more general uniform gear en route to work, for example, then under the Fair Labor Standards Act (FLSA), that pre- and post-shift changing time would not need to be paid.

Or if the time spent donning and doffing were considered “de minimis,” too insignificant to note, then it’s not compensable either. However, if the task of donning and doffing protective clothing and other gear was “integral and indispensable” to her principal work activity, which is often the case in industrial settings, then the changing time was compensable. Donning and doffing time is also compensable if the employee is mandated to wear protective gear by the employer, even if it’s not essential to performing her job, or if it’s required by law or government regulation. In such cases, the act of donning and doffing would be considered to be of benefit to the employer or to the public, not just to the employee. Also, if the donning and doffing is compensable, then the act of putting on and removing required work gear marks the start and end of the compensable workday under the “continuous workday” rule. That means employees would have to be paid for the time spent walking from locker room to production site, as well. Acme may want to reconsider whether that time clock should be relocated to the employee locker room.

Even if, under the criteria noted above, Acme’s widget assembly employees don’t need to be compensated for donning and doffing, Wendy has a viable retaliation complaint against Acme under the FLSA. Shel is wrong to think that it’s not a complaint unless Wendy calls the DOL. An employee need not make a formal charge with a government agency; in fact, she needn’t even put it in writing. All that an employee must do is raise concerns in a manner that would put her employer on fair notice that she was asserting her rights under the Act. Wendy did that here when she began to complain to Myron about the time-clock placement. Because she was discharged as a direct consequence of raising the issue, Acme may well be on the hook for retaliation.
And, since it appears that Wendy complained quite vocally and in deliberate earshot of her coworkers, Shel may have bought Acme an unfair labor practice complaint, as well. The National Labor Relations Act protects employees — union and nonunion alike — when they are engaged in “concerted activity” to improve the terms and conditions of their employment. If Wendy can show that she was trying to recruit her coworkers to join her in her time-clock complaints, she may be able to secure an order from the NLRB mandating that Acme reinstate her.

Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, [email protected]

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