Employees and Employers can’t agree on whether donning and doffing is compensable.
Sacramento, CAWorkers in California, from farm harvesters to computer technicians, can’t come to terms with the California labor law regarding donning and doffing—putting on and taking off employer-mandated uniforms, clothing and safety gear, even though a number of donning and doffing lawsuits have settled in favor of the employee.
The employer argues that their employee isn’t actually working. On the other hand, the employee claims--in many donning and doffing lawsuits—that any article of clothing (not only uniforms) or safety gear the employer must provide and has mandated in order for the employee to perform the job should be compensated by the employer. This means that time spent dressing and undressing should be on-the-clock.
Like other employment violations, donning and doffing is a wage and hour claim, like any off-the-clock work where the employee is expected to perform tasks before starting a shift and/or clocking out for the day. Like missed meal and rest periods, this task can add several minutes or more (think how long it takes to don a hazmat – hazardous materials—suit) a day. And this is time added to a workday for which the employee is often not getting paid.
Donning and Doffing Settlements
Employers might want to consider past donning and doffing complaints…
A donning and doffing settlement in 2012 cost Orange County 3.7 million in legal fees, cash settlements and time off for sheriff deputies, whose lawsuit claimed they spent up to one hour per day dressing and undressing for work without getting paid.
More recently in Troester v. Starbucks, the California Supreme Court found that a Starbucks shift supervisor should have been paid for work performed before and after clocking out for the day. Plaintiffs in another lawsuit, Ser Lao v. H & M, have cited the Troester decision to support their claim, a decision could open doors for many similar lawsuits.
In Sandifer v. United States Steel Corporation, however, the high court ruled in 2014 that most of that safety gear worn by about 800 steel workers was a form of clothing. Under the Fair Labor Standards Act, the court said, employers cannot be required to pay workers for donning work clothes unless both sides agree to that as part of a union contract.
These claims against employers under the FLSA have the potential to affect further claims regarding claims for off-the-clock, including time spent donning and doffing before and after meal breaks and rest periods. In Sandifer, only the beginning and end of the employees' shifts was at issue.
Tyson Foods workers at a meat-packing plant in Iowa filed a donning and doffing lawsuit and won a judgment in 2011 of $2.9 million A federal district court even doubled the award to $5.8 million.
And in Mitchell v. JCG Industries and Koch Foods, where plaintiffs were employed in a poultry processing plant, the Seventh Circuit U.S. Court of Appeals ruled in favor of the employer – but that decision did not include jurisdiction over California workers.
De Minimis Doctrine
In Mitchell, Judge Posner wrote that doffing and donning at meal time could be excluded under the de minimisdoctrine, meaning meant that the typical amount of time involved donning and doffing was too minimal a time to be compensable – in this case probably less than two minutes.
Just as donning and doffing is no so clear-cut, the parameters of what is and is not a de minimis amount of work are vague and not thoroughly defined under the FLSA. Even defining a “work day” can vary. In any event, it’s likely that donning and doffing issues will continue to be the subject of litigation for the foreseeable future.
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