Donning and Doffing Lawsuit
A donning and doffing lawsuit may be an option for certain hourly and salaried employees who have been affected by an employer’s failure to compensate for time spent donning and doffing personal protective gear and other clothes. Employees who did not receive pay during the time spent donning and doffing may be able to pursue compensation with the help of an unpaid wages lawyer.
For more information, contact Attorney Group today. Our consultations are free, confidential and without any obligation on your part. We can help answer your questions, and if you choose to pursue a claim we can connect you with an affiliated attorney who can assist you throughout the legal process.
Have You Seen a Donning and Doffing Lawsuit Commercial?
You may have seen a donning and doffing lawsuit commercial on television and wondered whether your rights as an employee have been affected by an employer’s failure to compensate you for time spent “donning” and “doffing.” You may have also wondered if you are eligible to pursue a claim against your employer or others. The purpose of this article is to provide you with additional information so that you have a better understanding of your options
What is the Fair Labor Standards Act?
Established in 1938, the Fair Labor Standards Act (FLSA) is a federal law that addresses a variety of issues regarding workers’ rights in the United States. According to the United States Department of Labor (DOL), the FLSA “establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.”
Employees who work for certain enterprises that have an annual dollar volume of sales or business done of at least $500,000 as well as hospitals, businesses that provide medical or nursing care for residents, schools and preschools, and government agencies. Likewise, employees whose work regularly involves them in interstate commerce are covered under the FLSA as well.
Some employees are exempt from the overtime pay provisions or both the minimum wage and overtime pay protections set forth by the FLSA. Exemptions from both minimum wage and overtime pay include:
- Executive, administrative and professional employees
- Outside sales employees
- Employees in certain computer-related occupations
- Employees of certain seasonal amusement or recreational establishments
- Casual babysitters and persons employed as elderly companions
Other types of workers are exempt from the overtime pay provisions outlined in the FLSA, including certain commissioned employees of retail or service establishments; some delivery employees; announcers, news editors, and chief engineers of certain broadcasting stations; domestic service workers; movie theater workers; and farmworkers.
What is Donning and Doffing?
“Donning” and “doffing” refers to the putting on and taking off of clothing, personal protective equipment (PPE), uniforms and other equipment used in the workplace. Under the FLSA, there are certain circumstances where employers are legally required to pay their employees for time spent donning and doffing. Articles of clothing often used in the workplace include:
- Hard hats
- Work boots
Whether the action of donning and doffing is a compensable activity has been the subject of numerous lawsuits and claims against employers and other businesses, particularly those where protective gear is necessary. Potential claims brought against employers often depend on the amount of time spent donning and doffing and the type of gear the worker is putting on and taking off.
The Portal-to-Portal Act
In 1947, Congress passed the Portal-to-Portal Act to identify what types of activities should be considered compensable. In general, if an employee engages in activities that benefit the employer, the employer is obligated to pay the employee for that time. Business entities, particularly manufacturers, food processors and other large-scale production employers whose employees are required to wear personal protective gear are responsible for determining the most appropriate way to compensate for time spent donning and doffing.
Oftentimes these activities are circumstantial, and two similar activities can be perceived differently. For example, cleaning up is usually not considered a compensable activity. However, if the job involves toxic or biohazardous materials, cleaning up may be an “integral and indispensable part” of the employee’s principle activities. Under the Portal-to-Portal Act, time spent driving to and from work is not considered a compensable working time, however, there have been exceptions.
Interpretation of Changing “Clothes”
According to the FLSA, time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement.
In an attempt to provide further clarity with regards to the proper interpretation of a statutory or regulatory issue, the DOL Wage and Hour Administrator has issued what is known as an “Administrator’s Interpretation.”
After a careful analysis of the statutory provision set by the FLSA and a thorough review of the legislative history and case law, the Administrator issued an interpretation of “clothes” and whether that interpretation could be considered a compensable act. According to the Administrator’s Interpretation issued in June 2010, the time spent putting on and taking off personal protective gear used in the meat packing and poultry industries can be a “principal activity” and was interpreted as a compensable act.
Other Compensable Workplace Activities
Employers have often had a hard time determining the best way to compensate their employees for whatever amount of time is spent donning and doffing under the provisions addressed in the Portal-to-Portal Act and FLSA. As a result, other compensable workplace activities could be considered “integral and indispensable.” Those activities could potentially include:
- Logging into and out of computers and computer systems prior to shifts and after breaks
- Time spent waiting for security checks prior to leaving the enterprise’s property at breaks and before or after shifts
- Picking up or moving tools, equipment or vehicles from one location to another
- Taking part in mandatory meetings prior to the start or after the end of a shift
As employer needs evolve to include other potentially necessary activities as part of the work day, businesses and other enterprises will want to consider the best way to compensate their employees for that time.
Donning and Doffing Class Action
Class action lawsuits are filed by an individual or small group of individuals who act on behalf of a large group known as the Class. There have been several donning and doffing class action lawsuits filed, notably class action cases filed against several poultry manufacturers, including Tyson Foods and Sanderson Farms.
In March 2016, a jury awarded $2.9 million to Tyson Foods employees who were required to wear protective gear in the kill, cut and retrim departments of a pork processing plant in Iowa. The employees claimed that only some of the employees were compensated for donning and doffing protective gear and attempted to certify their claims as a class action. Tyson Foods appealed the initial ruling, and in response, the U.S. Supreme Court upheld the class certification and verdict. In their written opinion, the Supreme Court upheld the decision based on Tyson Foods’ failure to keep adequate records of time spent donning and doffing.
Donning and Doffing Lawsuit Claims
Because federal labor laws and other workers’ rights provisions can be confusing, different courts have established slightly different tests for determining whether donning and doffing protective equipment are integral and indispensable activities.
A number of donning and doffing lawsuits have been filed on behalf employees and workers who claimed that they were not compensated for time spent donning and doffing PPE.
According to the DOL, the U.S. Supreme Court has stated “that employees who work in meat and poultry processing plants must be paid for the time they spend walking between the place where they put on and take off protective equipment and the place where they process the meat or poultry.” The court ruled that donning and doffing of protective gear in the poultry plant was considered a “principal activity” under the Portal-to-Portal Act and is part of a “continuous workday” and is compensable under the FLSA.
Donning and Doffing Lawsuit Settlements
A settlement is an agreement between two parties – usually the plaintiff(s) and the defendant(s) – to resolve a legal claim or lawsuit. Settlements typically involve the payment of money to the plaintiff by or on behalf of the defendant. In exchange, the plaintiff gives up their right to sue or continue with a lawsuit against the defendant.
Notable donning and doffing lawsuit settlements include:
Sanderson Farms announced that the Federal District Court for the Eastern District of Louisiana approved a settlement between certain hourly workers employed by the company. According to a press release issued by Sanderson Farms on June 23, 2008, the Mississippi-based poultry producer agreed to pay approximately $2.6 million to settle the claims of 8,337 current and former employees who allegedly spent uncompensated time walking to and from their workstations and donning and doffing PPE.
In 2011, Tyson Foods Inc. reached a $32 million settlement after employees from 40 poultry processing facilities claimed they were not paid for donning and doffing PPE at the beginning and end of their shift as well as attending to their equipment during unpaid breaks. According to Law360.com, Tyson agreed to pay at least $12.2 million and as much as $17.5 million to cover back wages as well as an additional $14.5 million to cover attorneys’ fees and court costs.
Donning and Doffing Lawsuit News
- March 2016U.S. Supreme Court upholds the class certification and verdict regarding a lawsuit filed against Tyson Foods for failure to compensate for time spent donning and doffing in a pork processing plant in Iowa.
- September 2016Tyson Foods Inc. reaches a $32 million settlement after employees from 40 poultry processing facilities claimed they were not paid for donning and doffing PPE.
- June 2010Wage and Hour Division Administrator issues interpretation regarding the meaning of “changing clothes” in agreement with the 2006 memo.
- June 2008Sanderson Farms reportedly agrees to pay approximately $2.6 million to settle the claims of 8,337 current and former employees who allegedly spent uncompensated time walking to and from their workstations and donning and doffing PPE.
- May 2006U.S. DOL issues a memorandum advising DOL staff of the U.S. Supreme Court unanimous decision determining that donning and doffing is a “principal activity” under the Portal-to-Portal Act of 1947.
- 1947An amendment to the FLSA specifying exactly what type of time was considered compensable. According to the Portal-to-Portal Act, as long as an employee is engaging in activities that benefit the employer, regardless of when they are performed, the employer has an obligation to pay the employee for the time.
- 1938The Fair Labor Standards Act of 1938 (FLSA) becomes a federal statute that introduced the 40-hour workweek, established a national minimum wage and overtime regulations, and prohibited most employment of child laborers.
Lauren A. on May 16, 2016
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What Are My Options When I’m Not Paid Compensation That I’m Owed?
In addition to being able to initiate a claim through the DOL, workers who have been unlawfully denied compensation for time spent donning and doffing may file a donning and doffing lawsuit with the help of an unpaid wages attorney. In those cases, the employee can seek damages for:
- Back wages not paid by the employer
- Liquidated damages in an amount equal to the unpaid back wages
In certain cases, the employee can also require the employer to pay his or her attorney’s fees for bringing the action to recover unpaid compensation.
Can an Employer Fire an Employee for Filing Donning and Doffing Lawsuit?
Your employer cannot legally retaliate against you for pursuing unpaid compensation. To do so will subject your employer to civil and criminal liability and will, as in a donning and doffing lawsuit, allow the employee to seek damages for back wages and liquidated damages. If the employee is fired, he or she will also be eligible to sue for reinstatement and other remedies.
Any type of retaliation is prohibited, including:
- Termination of employment
- Reducing job duties or hours
- Submitting a poor performance review that is unwarranted
- Firing a relative of the employee
- Any other type of objectively punitive behavior motivated by the unpaid compensation claim
Employers may have resources available to them to defend a donning and doffing lawsuit or retaliation claims, so it is important for an affected employee to seek counsel from an affiliated attorney to learn more about their rights and remedies.