Understanding the Fair Labor Standards Act – Donning and Doffing

This lawsuit asserts violations of the Fair Labor Standards Act, 29 USC Chapter 8.  Specifically, the lawsuit asserts that Precision Drilling failed to pay for certain compensable time under the law, and that as a result of this failure, failed to pay all overtime due.  Under the law, when an employer fails to pay compensation required by the statute, an employee may file a federal lawsuit seeking recovery of the unpaid wages, as well as liquidated damages (thereby doubling the amount each employee may collect) and attorney’s fees and costs.  An employee may file such claim individually, but is also permitted to file the claim collectively to recover wages for all employees similarly situated to him or her.

In this action, two employees of Precision Drilling have filed such a collective claim in the Middle District of Pennsylvania collectively on behalf of all hourly rig employees.  They assert that they were not paid for “donning and doffing” their safety equipment (i.e. they assert they were not paid for the time it takes them to take on and remove their safety gear).  In addition, they assert that they were not paid for time following the time they placed their equipment on and prior to the time they took their equipment off.

The Continuous Workday Doctrine

First, it is important to understand that it is the Plaintiffs’ position that the law requires not just compensation for the actual time it takes an employee to place on or remove safety equipment, but that it also requires compensation for all times between the first moment an employee begins to don (put on) his or her safety gear until the final moment when an employee finishes doffing  (removing) his or her safety gear.  Specifically, the Department of Labor and the federal courts have determined that the compensable workday begins with the first “principal activity” of a job and ends when the employee finishes the last “principal activity.”  All time between these two periods of time must be paid, unless such time represents a bonafide meal period.  This rule is referred to by the Courts and the Department of Labor as the “Continuous Workday.”  IBP v. Alvarez, 546 U.S. 21, 29 (2005) (citing 29 C.F.R. § 790.6(b)). Perez v. Mountaire Farms, 650 F.3d 350, 363-364 (4th Cir. Md. 2011).

Donning and Doffing

Preliminary and postliminary activities are compensable if they are an “integral and indispensable part of the [employee’s] principal activities.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956). The Supreme Court has clarified or restated this rule by holding that an “integral and indispensable” activity is itself a principal activity for purposes of the Portal Act. Alvarez, 546 U.S. at 37.

In Steiner, the Supreme Court first applied the integral and indispensable test to determine whether workers at a battery manufacturing plant should be compensated for time spent changing into and out of work clothes and showering on the premises. 350 U.S. at 248. In Steiner, the workers used old but clean clothes that were provided to them by the employer, worked with toxic chemicals, were provided with shower facilities and lockers in accordance with state law, and were engaged in an industry in which the custom and practice were to require employees to change clothes and take showers at the end of their shifts. Id. at 250-251.

The Supreme Court decided that these activities were integral and indispensable based on the fact that the employees were not changing into clothes and showering under normal conditions and were subject to health and safety risks associated with the manufacturing process. Id. at 248-249. The Supreme Court did not, however, define integral and indispensable.

Different Courts have established slightly different tests for determining whether donning and doffing protective equipment are integral and indispensable activities (and hence compensable as a matter of law).

The Third Circuit (where the Precision Drilling case is being decided), in De Asencio, adopted the integral and indispensable test articulated by the 5th, 8th, and 9th Circuits, that in order to be integral and indispensable, the work must be necessary to the principal work performed and done for the benefit of the employer. See De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 372 (3d Cir. 2007) (adopting 9th Circuit’s test articulated in Alvarez v. IBP, 339 F.3d 894, 902-903 (9th Cir. Wash. 2003), affirmed on other grounds, 546 U.S. 21 (2005)). The Court in De Asencio also rejected any distinction between specialized PPE and general PPE.

[I]n considering whether putting on and taking off safety goggles was excluded, the ease of donning and ubiquity of use did not make the donning of such equipment any less integral and indispensable. We clarified that the term ‘work,’ as used in the FLSA, includes even non-exertional acts. We also made it clear that the donning and doffing of various types of safety gear, as well as the attendant retrieval and waiting, constituted ‘work.‘  Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004). . . [W]e conclude that it was error for the jury instruction to direct the jury to consider whether the gear was cumbersome, heavy, or required concentration to don and doff. This language in effect impermissibly directed the jury to consider whether the poultry workers had demonstrated some sufficiently laborious degree of exertion, rather than some form of activity controlled or required by the employer and pursued for the benefit of the employer . . . exertion is not in fact, required for activity to constitute “work.”

De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).

In order to be “necessary,” it is enough that the donning and doffing be required by law, by employer’s rules, safety concerns, and/or by the nature of the work. See Alvarez, 339 F.3d at 894. Several courts have also held that the wearing of protective gear is done primarily for the benefit of the employer when it allows the employer to comply with workplace safety laws and guidelines, and prevents unnecessary workplace injury and contamination. De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).

Application of the Law to the Facts

It is asserted by Plaintiffs that Precision Drilling required that they wear safety gear, similar to the workers in the cases cited above.  In fact, the gear at issue is substantially more involved than the gear that the chicken farmers were required to wear in De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).  Precision Drilling employees work an extremely dangerous job and are required to wear safety gear for protection during their grueling workday.  This lawsuit simply asks for compensation for such time, based on the reality that such time was spent, not because of the employee, but because of the employer.

Join the Lawsuit

If you are interested in joining the lawsuit and have not yet done so, please join the lawsuit here.  Under the law, you can only recover wages for up to 3 years prior to the date you submit your Consent Form.  Accordingly, you can lose your legal right to join the lawsuit if you wait.  Furthermore, the Court has set an absolute deadline of May 15, 2013.  We will not be able to file your Consent Form if you submit it after that date.