Donning + Doffing = Divided Decisions

The Supreme Court has refused to resolve competing appeals court views on the nature of donning and doffing, denying certiorari in Mountaire Farms Inc. v. Perez in late February.

Perez is the latest in a series of cases in which petitioners ask for further clarification on when employees must be paid for putting on and taking of work clothes.  At issue is whether the activity is actually part of the job.

In the landmark 2005 case IBP, Inc. v. Alvarez, the high court held  that the donning and doffing of protective gear by meat packers working  was “an integral and indispensable” part of the work day and those workers were entitled to pay. But since then, the court repeatedly has refused to revisit the issue.

At least three federal courts have since read Alvarez to say that donning and doffing work gear is compensable only when the gear is unique. One court does not use the distinction between “unique” and “generic” gear, and another court simply considers whether donning and doffing itself counts as “work.” As a result of these different tests, factually identical cases have led to different outcomes.

In Sepulveda v. Allen Family Foods, Inc., the Supreme Court refused to consider whether the FLSA’s exclusion for time spent “changing clothes” applies to personal protective gear. There, employees sought review of a decision that personal protective equipment fell into the “changing clothes” exclusion under the FLSA, and therefore, time spent changing into personal protective equipment was not compensable. One court has held that the exclusion does not include personal protective equipment, although it has ruled that donning and doffing “non-unique protective gear,” such as hardhats, hairnets, or safety goggle, does not constitute “hours worked” and is therefore not compensable.

Similarly, in Gorman v. Consolidated Edison Corp., employees sought compensation for time they spent donning and doffing protective gear. The Second Circuit rejected their claim, holding that “a helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs’ principal activities without being integral.” Gorman also found that donning and doffing generic, non-unique protective gear is not “integral” merely because the employer requires it. The Supreme Court denied certiorari.

Tyson Foods v. De Ascensio was yet another industry case where workers had to wear non-unique protective gear (smocks, hairnets, earplugs, and safety glasses). There, the Third Circuit held that the donning and doffing in that case constituted “work” as a matter of law and therefore was compensable. Again, the Supreme Court denied certiorari.

As the law stands now, some federal courts review these cases under the “work vs. non-work” test (as in Tyson), while others use the “integral and indispensable” test (as in Gorman). While these cases are fact-sensitive, the use of different tests causes confusion and unpredictability. As the Mountaire petition noted, “[b]usinesses need clarity on the issue of what preliminary and postliminary activities are “integral and indispensable” to work, and thus compensable,” and which are not.