Even as courts across the country struggle with the definition of compensable “work” under the Fair Labor Standards Act, a New York district court recently granted summary judgment for an employer that did not pay employees for pre-shift donning and post-shift doffing of required safety clothing and equipment. The case is Adams v. Alcoa Inc., No. 7:07-cv-01291, 2011 WL 4527664 (N.D.N.Y. Sept. 28, 2011). Below, the court’s key rulings are summarized and we explained how the rulings are consistent with case law even beyond the district court’s jurisdiction.
The Adams court ruled that aluminum factory workers were not entitled under the FLSA to pay for time spent putting on and taking off items of employer-provided personal protective equipment (“PPE”). In particular, employees were required to wear flame retardant shirts and pants, steel-toed boots, spats, hard hats with snoods that cover the back of the neck, and safety glasses.
The court’s decision turned on whether the donning and doffing of the PPE was “integral” and “indispensable” to the employees’ principal activity. First, the court noted that workers were not required to don and doff their PPE at the work site and, therefore, such donning and doffing was not “indispensable” to a principal activity. For that reason alone, the donning and doffing time was not compensable under the FLSA. Indeed, this ruling is consistent with the U.S. Department of Labor’s long recognized view that where employees have the option and ability to change into and out of work-related clothing and protective equipment away from their workplace, their donning and doffing activities are not compensable, even if the employee chooses to don and doff at the facility. See DOL Field Operations Handbook Section 31b13; see e.g., Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010) (donning and doffing uniforms was not integral and indispensable, and therefore not compensable under the FLSA, where the plaintiffs were free to do so away from the employer’s premises); Musticchi v. City of Little Rock, 734 F.Supp.2d 621 (E.D. Ark. 2010) (donning and doffing of uniforms and protective gear was not compensable where neither the law nor the employer requires employees to change clothes on the employer’s premises).
As a separate basis for denying compensability, the court found also that the activities were not “integral” to the employees’ principal work activity. The Second Circuit, in Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir. 2007), held that donning and doffing is only integral and indispensable to a principal activity when the principal activity is performed in a lethal environment. Recognizing that Gorman’s interpretation was “unusual” and that courts in other circuits have rejected it, the Adams court nevertheless found that the plaintiffs did not work in a “lethal” atmosphere and that donning the PPE was not integral to entry and immersion into that atmosphere.
Even outside the Second Circuit, though, courts have routinely held that time spent donning and doffing garden-variety clothing and standard PPE is not compensable because it is not integral and indispensable to the employee’s principal activity. E.g., See Pirant v. U.S. Postal Service, 542 F.3d 202, 208 (7th Cir. 2008) (donning and doffing uniform shirt, gloves, and work shoes is not integral and indispensable); Edwards v. City of New York, No. 08 Civ. 3134, 2011 WL 3837130, (S.D.N.Y. Aug. 29, 2011) (donning and doffing a uniform shirt, trousers, belt, socks, shoes, tie, bullet or slash resistant vest, and utility belt was not compensable); Schwartz v. Victory Security Agency, LP, No. 11cv0489, 2011 WL 2437009 (W.D. Pa. June 14, 2011) (“while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensable to Plaintiff’s principal activity, providing security”); Anderson v. Pilgrim’s Pride Corp., 147 F.Supp.2d 556 (E.D. Tex. 2001) (donning aprons, smocks, gloves, boots, hairnet, and earplugs was not compensable).
The Adams ruling thus follows an analysis adopted by many other courts to determine the compensability of off-the-clock activities that are routinely alleged in FLSA cases. Defense counsel need to be aware of these developing trends in advising and defending their clients.
by Joseph Tilson and Jeremy Glenn of Meckler Bulger Tilson Marick & Pearson LLP