It’s usually as easy as A, B, C:

a)    The work week is 40 hours;

b)    Any time worked more than 40 hours in a week by a non-exempt employee must be paid overtime (1.5 times hourly rate); and

c)    Time spent ‘donning and doffing’ necessary personal protective equipment (PPE) at work is paid time.

A recent federal court case from Pennsylvania is a reminder that the ABCs are not always that easy to remember. A jury decision yielded the largest award in Department of Labor (DOL) history against a lead battery manufacturer with a long-standing practice of only paying its workers for their eight-hour shift and not paying them for the additional time employees needed to put on and remove protective equipment and to shower to avoid the dangers of lead exposure and other hazards.

The jury awarded $22 million in back wages to be shared by more than 7,500 affected workers.

To appreciate the significance of this decision, it is important to understand how DOL defines donning and doffing. The terms are defined as time spent changing into or out of a uniform on the employer’s premises. If an employee must change at work, that is likely to be considered work time.

The DOL illustrates this by example. If an employee in a chemical plant cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday is an integral part of the employee’s principal activity and thus compensable. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal work activities, it is unpaid activity.

The DOL convinced the jury in the Pennsylvania case that the activities of donning and offing, and washing off harmful chemicals, were “integral and indispensable” to the employees’ work.  The jury rejected the employer’s argument that the activities were generic safety measures taken by employees and not inherent to the employees’ work.

Over the years, the U.S. Supreme Court has ruled unanimously that employers must also compensate workers for the time they spend walking to and from the production floor after donning and before doffing required safety gear. And the Court has ruled that time spent waiting to doff the required safety gear at the end of a shift is also compensable.

But not everything is compensable. Over the years the courts have determined that sometimes donning and doffing gear, such as hardhats and safety goggles, while integral and indispensable to the employees’ principal activities, is not compensable time because those activities were “de minimis as a matter of law” and therefore employees need not be paid for the time.

Massachusetts  

At the state level employers will find donning and offing requirements in the Massachusetts minimum-wage regulations, referenced as 454 CMR 27.00.

The regulations define working time to include “all time during which an employee is required to be on the employer’s premises or to be on duty, or to be at the prescribed work site or at any other location, and any time worked before or after the end of the normal shift to complete the work. Working time does not include meal times, during which an employee is relieved of all work-related duties. Working time includes rest periods of short duration, usually 20 minutes or less.”

The regulation makes clear that employers must pay employees to put on a uniform or PPE at work if the employer requires an employee to do so. This obviously includes the time spent changing into (donning) and out of (doffing) required clothing for work. There is no need to pay if the employee could put the clothing or PPE on at home or if the time involved were de minimis.

The Pennsylvania case is a reminder of the risk an employer faces in failing to properly pay wages for all time worked by its employees. Massachusetts employers will face even more dire consequences if they are found to violate state law. If an employee or former employee brings a private right of action claim for unpaid overtime and prevails, the individual will be entitled to treble damages and attorney’s fees.

AIM members with questions about this or any other human resources issue may contact the AIM Employer hotline at 1-800-470-6277.