When working in certain industries, specific safety gear and/or uniforms are required to make it safe for both employees and consumers. Sometimes this gear requires extra time to put on. If the gear is essential to the work done and contributes to an employee’s time, this may be a compensable activity. Under the Fair Labor Standards Act (FLSA) and state law, there are certain rules pertaining to payment of donning and doffing activities.
What is donning and doffing?
Donning refers to putting on clothes, gear, and/or equipment while doffing refers to taking them off. When this gear is essential for the job, there may be a need for employers to compensate employees for this time spent putting it on and taking it off. For example, when an individual works around hazardous material, they may be required to wear a protective or hazmat suit, coveralls, gloves, boots, and respirators. These items may take some time to put on before entering their workspace.
Under the FLSA
Under the Fair Labor Standards Act (FLSA), employers need to pay their employees for the work that is performed. This work may or may not involve donning and doffing activities. If donning and doffing is considered an integral part of the work performed, it may be compensable. Under the FLSA, employers can use collective bargaining to modify or eliminate for donning and doffing. When employers state these items using clear and specific language to which the employee agrees, there would be no compensation for donning and doffing activities.
The Portal-to-Portal Act
The Portal-to-Portal Act is an amendment to the FLSA. This amendment states that the preliminary or postliminary activities performed by an employee is not considered work. This would include items like changing clothes or showering, unless that is an integral part of the job.
In 2020, the Wisconsin Supreme Court made a ruling on donning and doffing that may affect employers. Jones Dairy Farm is a food production facility that requires its employees to wear gear for the work they perform. In 2010, a group of employees filed a suit seeking payment for the time spent donning and doffing in the beginning and end of each workday. Jones Dairy Farm argued that they used collective bargaining, which in turn did not require them to pay for this time.
The Wisconsin Supreme Court ruled that since the gear that was required by the company was an integral part of the principal activity, the activity is compensable. They also ruled that employers cannot use collective bargaining to modify or eliminate paying for donning and doffing PPE.
Is PPE related to COVID-19 compensable?
There may be employers still requiring masks and gloves to be worn during the COVID-19 pandemic. The United States Supreme Court has determined that things that take little time, like a putting on or taking off a mask, is very minimal and would be difficult to actually record. Therefore, this is likely not compensable.
Wage lawyers can help you
If you are a Wisconsin employer, contact McDonald & Kloth, LLC if you have any questions about what types of actions are considered compensable donning and doffing activities. Our wage lawyers have can provide insight into what is legal and how to go about these items.