The flood of donning and doffing disputes under the Fair Labor Standards Act that we saw a few years back may have leveled off. But some pay issues relating to this routine taking off and putting on of clothes are not yet resolved. The Supreme Court had two opportunities in its current term to pick up cases that would enable it to rule decisively on the issue. It passed on the first go-around, but there’s another opportunity waiting in the wings.
On Jan. 6, SCOTUS announced it would not hear arguments regarding D&D for police officers (Abbe, Marcus v. San Diego). The case, initially filed by San Diego police officers, came out of the U.S. Court of Appeals for the Ninth Circuit. They claimed the city owed them millions of dollars for time they spent donning and doffing uniforms and safety equipment, answering emails and doing other pre-shift tasks.
Four years later, a jury ruled in favor of the city in a trial dealing with a small piece of the case. Soon thereafter their case was dismissed. A much smaller group of officers filed an appeal with the 9th Circuit, which upheld the previous judgments.
SCOTUS declined to grant the San Diego case cert, but another is pending—Mountainaire Farms v. Perez. It deals with time spent getting into (and out of) sanitary and safety gear and comes from the Fourth Circuit.
Unrelated to the donning and doffing cases, SCOTUS also has a FLSA case scheduled for conference this Friday pertaining to tipping and minimum wage obligations. If granted cert, the case — Applebee’s International Inc. v. Fast — would address whether an employer loses the “tip credit” that FLSA allows them to apply toward minimum-wages for an employee that receives tips if that employee spends more than 20 percent of his/her time on something other than the duties that will earn those tips.