Recently the United States Supreme Court decided IBP, Inc. v. Alvarez. This case may require a change in your practice for compensating employee time spent “donning” (putting on) and “doffing” (taking off) protective gear as well as the time walking between the change room and the production area.

As a result of this decision and other relevant court decisions, an employer is now required under the Fair Labor Standards Act to treat the following activities as compensable unless otherwise deemed “de minimis”:

1. Time spent donning required protective gear that is “integral and indispensable to the employee's work,” including, but not limited to, aprons, hard hats, goggles, etc.;
   
   
2. Time spent walking to the production area after donning such protective gear;
   
   
3. Time spent walking from the production area to changing area in order to doff the required protective gear;
   
   
4. Time spent doffing required protective gear that is “integral and indispensable to the employee's work,” and
   
   
5. Time spent waiting to return protective gear to the employer after removing the protective gear.

Section 3(o) of the Fair Labor Standards Act does provide that any time spent “changing clothes or washing at the beginning or end of each work day,” which was excluded as hours worked by custom or a practice need not be considered hours worked under the statute. It appears that the definition of “clothes” does not include the time spent putting on required protective equipment.

The case also discusses a legal concept called “de minimis.” This term has been used by courts in situations where an employee has spent a very short period of time performing a task that otherwise would have been hours worked and thus compensable. While these cases are very fact specific with respect to the amount of time involved, where a court concludes that time spent is of such a short duration as to be de minimis the employer is freed of the obligation to treat the time as hours worked and thus compensable.

What Should You Do As A Result Of This Decision?

If you require an employee to wear protective gear, then there are some initial questions you should ask to determine how the new ruling applies to your work place and what actions to take.

1. Do your employees wear protective gear versus “clothing”?
   • Protective gear or personal protective equipment refers to items worn by an employee to “provide a barrier against exposure to workplace hazards,” such as a metal apron, hard hat, goggles, etc.
   • Clothing such as scrubs or uniforms still falls under the Section 3(o) exemption of the FLSA and therefore can be noncompensable time if a matter of practice or union contract.
     
     
2. Do you require employees to come into the workplace at a specified time to change into their protective gear?
   • If yes, then you may be required to compensate the employees for the time spent waiting to put on the protective gear.
     
     
3. Is the donning of protective gear considered de minimis and thus not hours worked?
   • Protective gear which takes longer than approximately five minutes to don is compensable time.
   • Protective gear which takes less than approximately five minutes to put on is considered de minimis and the time is therefore noncompensable.
     
     
4. Are you required to compensate employees for the time spent walking from the changing area to the production floor?
   • YES, if employees are required to put on protective gear and the total donning and walking time is not de minimis.
   • NO, only if total donning and walking time is “de minimis.”
     
     
5. Are your employees required to be compensated for the time spent walking from the production floor to the changing area?
   • YES, if employees are required to put on “unique” protective gear and the total donning and walking time is not deemed de minimis.
   • NO, only if the doffing and walking time in total is considered de minimis.
     
     
6. Are you required to compensate employees for time spent waiting to return protective gear to the employer after taking them off?
   • Yes, if an employer requires the employee to return the clothing to a specialized area and the employee is then required to wait, then the time is compensable.

Please contact Jim Dawson (612-373-8422) in the Minneapolis office for assistance in making a determination whether certain employee activities are now compensable.

View Biography James M. Dawson

Founded in Saint Paul in 1943, Felhaber, Larson, Fenlon and Vogt, P.A. has offices in Minneapolis and Saint Paul. With over 55 attorneys, the firm serves clients in the areas of corporate and commercial law, employee benefits, employment law, estate planning, health care, intellectual property, labor law representing management, litigation, real estate, transportation law, and workers' compensation.