If you make your employees take their clothes off, you have to pay them. Except at lunch.
Perez et al. v. Mountaire Farms, Inc., et al., No. 09-1917, 2011 4th Cir. LEXIS 11547 (June 7, 2011). Luisa Perez brought this collective action lawsuit on behalf of herself and others employed by Mountaire Farms, Inc. She brought this action under the Fair Labor Standards Act (“FLSA”) to recover lost wages and liquidated damages. At issue was whether Mountaire’s failure to pay its employees for the time spent putting on (“donning”) and taking off (“doffing”) protective gear amounted to a violation of the FLSA.
Mountaire is a poultry company that operates chicken processing plants. Mountaire pays its employees who work on the production line based on the time each employee spends on the line. Those employees are required to wear a variety of protective clothing, which they put on before entering the production line. Some Mountaire employees are required to wear, among other things, helmets, smocks, hair and beard nets, steel-toed rubber boots, cut-resistant gloves, aprons, safety glasses, sleeves, and chain gloves. Most employees usually take off their protective gear before lunch, and then put it back on when they come back to the line. At the end of the shift, employees were required to remove their protective gear. Additionally, each time before the employee enters the production line, he or she had to sanitize the protective gear. Mountaire employees spent anywhere from 10 to 20 minutes per day donning and doffing protective gear.
In January 2006, Mountaire employees filed a complaint under the FLSA seeking to be compensated for the time spent donning, doffing, and sanitizing their protective gear, as well as walking to and from their work stations and working during meal breaks.
After trial, the district court held that the time spent donning and doffing protective gear, both at the beginning and end of the day and before and after meal breaks, was compensable as work under the FLSA. It also found that Mountaire’s FLSA violations were not willful, and thus that the statute of limitations for the FLSA claims was two years, not three as the employees had alleged. Thus, the employees could recover two years of pay for time spent donning and doffing, rather than three. The court also held that Mountaire acted in good faith and, as a result, denied the employees’ liquidated damages claim.
Both the employees and Mountaire appealed.
In order to determine whether the FLSA requires that Montaire employees be compensated for the time spent donning and doffing their protective gear, the court first examined the language of the statute. The FLSA requires the employees be paid for all “hours worked.” Because the term “work” is not defined in the FLSA, courts must decide the term’s meaning. The U.S. Supreme Court has defined “work” broadly, to include time the employer requires the employee to spend on the employer’s premises for business purposes. Additionally, under the “continuous workday” rule, employers must pay employees for all activities that occur after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity. The Portal-to-Portal Act of 1947 amended the FLSA and states that an employer does not have to compensate an employee for activities that are preliminary and postliminary to the principal activities of a job, unless those activities are an integral and indispensible part of the employee’s principal activities.
Thus, in order for the court to determine whether the Mountaire employees’ donning and doffing was compensable, it had to determine whether those activities were integral and indispensible to chicken processing.
The court applied the Ninth Circuit’s two-part definition of “integral and indispensible” to the facts of this case. The donning and doffing of protective gear is “integral and indispensable” to the employer’s principal activity when the donning and doffing is: 1) necessary to the principal work performed; and 2) primarily for the benefit of the employer. With regard to donning and doffing at the beginning and end of shifts, the court decided that this was necessary under federal safety and sanitation regulations. The court also decided that it was primarily for the benefit of the employer, because the protective gear protected the products from contamination, kept workers’ compensation payments down, etc. Thus, the employees would receive compensation for the time spent donning and doffing protective gear before and after their shifts.
The court viewed mid-shift donning and doffing differently, though. That time was not compensable because the donning and doffing was part of a “bona fide meal period,” as court precedent dictated.
This case should serve as a warning for employers that require their employees to wear protective gear. When protective gear is necessary and serves to protect the employer from liability, under this decision and in the Fourth Circuit, the employees should be paid for the time spent donning, doffing, and sanitizing that protective gear, unless that time is part of a meal period.