by Angelo D. Catalano, Coughlin & Gerhart, LLP
The Fair Labor Standards Act (FLSA) is a broad federal law that establishes the federal minimum wage, overtime pay requirements, and a plethora of other compensation-related standards. The Act provides guidance on what is and is not compensable work time. One of the questions that continues to vex employers under the FLSA is whether they have to pay employees for time spent on certain activities before and after shifts, such as dressing and undressing for work (also known as “donning and doffing”).
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The U.S. Court of Appeals for the 2nd Circuit— which covers Connecticut, New York, and Vermont—recently held that New York City assistant urban park rangers’ (AUPRs) act of putting on their uniforms may qualify as compensable donning and doffing time for which they must be paid.
Background
Several former and current AUPRs filed suit under the FLSA, alleging that New York City failed to pay them in accordance with the Act’s requirements. Specifically, the AUPRs claimed that the city did not pay them for time spent putting on and taking off their uniforms, which consist of a shirt, a jacket, pants, a hat, a bullet-proof vest, and a utility belt that holds handcuffs, pepper spray, a summons book, and a tape recorder. The AUPRs alleged that donning and doffing the uniform and gear can take from 5 to 30 minutes each day. The city asserted that the activity was not compensable.
A U.S. district court agreed with the city and granted partial summary judgment (dismissal without a trial) in its favor. The court determined that the time spent donning and doffing the clothing and gear was not compensable because it was not integral and indispensable to the AUPRs’ principal activities and, even if it was, the time was de minimis (minimal).
On appeal, the 2nd Circuit held otherwise. The court held that it could not determine that donning and doffing the uniform and equipment was noncompensable because a jury could find that it was an integral and indispensable part of the principal duties of the AUPRs. Thus, the 2nd Circuit threw out the district court’s decision and sent the case back for further proceedings. Perez et al. v. City of New York et al. (2d Cir., August 2, 2016).
What the decision means for employers
The FLSA mandates that employees be paid for the principal activities they are employed to perform, including tasks that are completed outside their regular work schedules and are integral and indispensable to their principal activities. However, the FLSA does not require payment for activities that are preliminary or postliminary to an employee’s principal activities. A task qualifies as integral if it is intrinsically connected with a principal activity an employee is hired to perform. A task is indispensable if it is necessary to perform the employee’s principal activity.
As you can imagine, the FLSA’s standard is extremely fact-dependent. The key issues the 2nd Circuit focused on were whether the activity was undertaken for the employer’s benefit and whether the employees were required to complete the task at the workplace. Courts have held that poultry workers who were required to don and doff protective equipment were entitled to pay for the activity.
In this case, there was evidence that the city required the AUPRs to don and doff the gear “on premises” and that it had extremely strict rules regarding how the gear was to be worn. Those factors forced the 2nd Circuit to determine that a jury could find that the activity was compensable under the FLSA.
Bottom line
The FLSA can be a tricky minefield for employers trying to determine which activities are compensable before a shift begins or after work ends. There are some important lessons in this case. First, it will be difficult to defend an FLSA claim if an employee is required to put on and take off protective equipment or clothing at the worksite. So unless it is necessary for employees to get dressed at work, they should be permitted to put on their uniforms or work attire at home.
Second, reconsider providing on-site changing rooms and locker space, and revise your policies to reflect that the use of the rooms or space is voluntary. Third, always have clear job descriptions for employees. If an employee’s principal work activities are clearly established, it will be much easier to determine which tasks are integral and indispensable parts of his duties.
Finally, if you are subject to donning and doffing liability, make sure employees are correctly paid under the FLSA. Experienced counsel can help you navigate the minefield and assist you with implementing best practices to avoid lawsuits like the one experienced by New York City.
Angelo D. Catalano, an editor of New York Employment Law Letter, can be reached at acatalano@cglawoffices.com or 607-723-9511.