I originally wrote this post back in 2011. You would think this is a simple issue, yet employers continue to get it wrong. Just yesterday I read an article written by the attorneys of Fox Rothchild, LLP where they described a case where a company is accused of owing overtime to 7000 employees because the company refused to pay them for the time it took them to put on protective clothing and then take it off. This was a battery making facility and this clothing was needed to protect the workers from battery acid. The law reads, as you will find below, that the standard is “integral and indispensable” to the “principal” duties of employment. I for one fail to see how a company could not interpret that correctly. Thus, reading about that case I decided to republish this post to explain to employers their responsibilities when paying employees for preliminary and postliminary activities. Pay attention, it is a big deal.
In my ongoing series on Fair Labor Standards Act issues, I wanted to talk about a little know area known commonly as the “donning and doffing” rules. Under the USDOL regulations, these are known as “preliminary and postliminary” activities that may or may not be compensated time for non-exempt employees. (I bet most people did not even know the word ‘postliminary’ existed.) A good number of court cases have been heard regarding these activities. I am going to try to give you the ‘down and dirty’ on these activities and terms.
The Elaws Advisor on the USDOL website gives some examples of activities that would NOT be compensated time. One such example is parking in a company parking lot and either walking or riding a bus, to the time clock would NOT be compensated time. However, clocking in and then walking to their workstation would be compensated time. There are some exceptions to this, however. If a union contract specifies that such time is compensated then the contract must be abided by, or, if the common practice at the workplace specified this as “time worked.”
One area that has been litigated often is in the putting on and taking off (donning and doffing) protective clothing. The rule is “… the FLSA provides that pre-shift donning and post-shift doffing may be compensable if both “integral and indispensable” to the “principal” duties of employment.” According to an article by Badoux and Lehet:
The DOL and courts have long adhered to the “continuous workday” rule. Under this rule, the compensable workday begins the moment an employee engages in either a principal duty (i.e., a task he or she is employed to perform) or an activity integral and indispensable to a principal duty. The compensable workday then continues until the final principal duty or integral and indispensable activity of the day. Consequently, activities engaged in during the interim remain compensable if pursued necessarily and primarily for the employer’s benefit. If they are not, and instead the employee is relieved from duty and free to use the time for his or her own purpose, the compensable workday ends and does not begin until the next principal duty or integral and indispensable activity.
Protective equipment such as helmets, safety glasses, chemical suits, respirators, dust suits and such are generally necessary and integral to the performance of various jobs. They are “donned” in the workplace. Employees would not come to work or ride the bus wearing such equipment. The time it takes to put this equipment on and take it off at the end of the shift would be compensable time. As an example, suppose you run a 7 am to 3 pm work shift. You require them to be at their workstation promptly at 7 am. But before they can report they have to put on a protective suit and helmet. This activity requires 15 minutes. Thus they would clock in, put their equipment on, and then report to their workstation. At the end of the day, they remove the clothing and clock out. Each day thus becomes 8.5 hours. At the end of a five day work week, they have now worked 42.5 hours. This is 40 hours straight time and 2.5 hours overtime.
Uniforms are a different issue that has been litigated often. Uniforms that can be donned at home, or at work, at the employee’s discretion are not considered integral and necessary to the performance of the work. The donning and doffing of these items would not be compensable time. However, if where someone puts a uniform on is not left to the discretion of the employee, then the time may become compensable.
Other preliminary and postliminary activities may be compensable if they are integral to the performance of the work. For example, my son worked for a landscaping company. The manager required everyone to be there at 7 am to load the trucks and get instructions. However, he did not start their “clock” until they left for the worksites. At the end of the day when they came back at 5 pm, it usually took them a half hour to put things away. However, he stopped their clock at 5 pm. To him, the preparatory and concluding activities were not the work he was paying them for. Well, he found out he was incorrect when the state DOL came knocking on the door. Subsequently, back pay had to be paid and the manager lost his job. Not a happy ending for the company or manager.
Given these examples, and the increased scrutiny the USDOL is putting on wage and hour issues, it would be very prudent of you to take a close look at your activities centered around the time clock and determine if what you require of an employee is “integral” to the performance of their jobs. And then pay them correctly. BTW, this works for white-collar non-exempt positions as well. If an IT person needs to be there first to turn on equipment before she can begin her workday, that time spent waiting for the equipment to be activated may be compensable.
Remember, I am not an attorney. I am not providing you legal advice. I am providing you with HR information that may lead you to question the correctness of what you are doing. If you are doing it wrong or think you are you may want to check with your attorney.
