Many workers employed in factories here in Wisconsin and throughout the country wear safety gear to protect themselves from the hazards of the job. Depending on how dangerous a job is, some employees spend considerable time putting on (“donning”) safety gear when they arrive at work and taking it off (“doffing”) when their shift ends.
The Department of Labor views the matter of “donning and doffing” safety gear through the broad lens of “changing clothes” as defined by the Fair Labor Standards Act (FLSA). The general rule provides that employers are not liable to pay employees for time spent “changing clothes,” unless a collective bargaining agreement dictates otherwise. However, until recently, it was not clear if “donning and doffing” safety gear was also considered “changing clothes.”
In January 2014, the US Supreme Court clarified that workers in a steel factory did not need to be paid for the time that they spent “donning and doffing” their safety gear because the act of “donning and doffing” was not sufficiently different from the definition of “changing clothes” under the FLSA. However, the Supreme Court only addressed the safety gear of steel workers at that time. Whether or not safety gear worn by employees in other industries is also considered “changing clothes,” remains to be seen.
Last Month the Wisconsin Supreme Court agreed to hear a case brought against Tyson Foods by 6 employees who claimed they should have been paid for time spent “donning and doffing” protective sanitary equipment in the meat processing plant where they worked in Wisconsin. The Circuit Court ruled in favor of Tyson, based on its interpretation of the Wisconsin Department of Workforce Development’s code, which defines whether the “donning and doffing” is “integral” to the employees’ work activities. The Court of Appeals reversed, deciding that “donning and doffing” the sanitary gear was “integral” to the job in this case.
The issue of “donning and doffing” safety gear is likely to remain in the news as lower courts throughout the country grapple with the US Supreme Court’s new ruling. As the Tyson case makes its way through the court system here in Wisconsin, both employees and employers with ties to unions should be cognizant of the final decision and how it could have implications for union negotiations in any industry.