Safety and OSHA News

Court complicates payment for donning and doffing safety gear

hard-hats-not-worn

A new federal court ruling further complicates whether you have to pay employees for the time they spend putting on and taking off safety gear. This recent ruling is a split decision for employers.

A district court has ruled that a company doesn’t have to pay workers for donning and doffing personal protective equipment (PPE). However, the employer may have to pay for the time spent walking from where the gear is stored to their work areas.

Three employees sued U.S. Steel Corp. seeking pay for the time spent donning and doffing PPE, showering, and walking to and from their workstations after donning and before doffing. The company asked the district court to throw out the case.

In Steiner v. Mitchell, the Supreme Court ruled “activities, such as the donning and doffing of specialized protective gear that are performed either before or after the regular workshift, on or off the production line, are compensable if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.”

However, federal law says there are exceptions if two conditions are met:

  1. There must be a bona fide collective bargaining agreement that excludes such payment, and
  2. The activities at issue must constitute “changing clothes” within the meaning of the statute.

The employees in question did have a collective bargaining agreement that excluded time spent donning and doffing PPE.

So the matter came down to this: Were the employees just changing clothes or putting on specialized PPE?

The court found, after looking at photos and video of the PPE at issue, that flame retardant jackets and pants, glasses, boots, and hard hats unquestionably fell within the common definition of clothes.

For that reason, the court partially granted U.S. Steel’s request and threw out the part of the lawsuit regarding donning, doffing and showering.

But the district court didn’t throw out the question of whether to pay for the time walking from changing areas to workstations. It cited the Supreme Court’s decision in Alvarez that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity” is compensable.

The question over walking time will now go to trial.

Let us know what you think of the court’s decision and the issue of whether to pay employees for donning and doffing PPE in the Comments Box below.

Cite: Andrako v. U.S. Steel, U.S. District Court, W.D. PA, No. 07-1629, 6/22/09.

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  • A Clyde

    I believe it is the responsabilty of the employee to wear their required PPE, and the case for payment should be dropped for walking to and from there work station. The employee’s no what time to be at there work station and needs to utilize time management, to be at there work station with the required PPE.

  • Chris Dark

    I think they should be payed for putting on and off safety equipment that is required for the job, but if they signed something saying the company didnt have to pay then that is their falt for signing something of that nature. If you agree to something there cant be no going back and changing your mind, you either have to just suck it up or find another job. With the economy like it is I probably would just stick with it and hope for changes later.

  • Marie

    The equipment they list in my opinion is not ‘clothign’ but ppe. Changing from jeans to a fast food uniform is ‘changing clothes’ but putting on fire protection items is more ppe.

    We do pay people to change their clothes–state law and contract. But, they need to be at their work station within 7 minutes of their start time. After that, they are considered tardy. That would include walking to their work statoin after changing. With limits, it doesn’t ahve to be cumbersome and mgt can manage it. But to leave it open ended so that the walk ends up being as leisurely stroll can cause problems.

  • Ted Bean

    An employee is paid for his/her time. Period. If he/she is on the employer’s premises performing any job related function–such as putting on required PPE–then the employer should pay. On the other hand, if a union is stupid enough to allow the specific exclusion of pay for a given function, then the contract takes precedence.

  • Brandon

    Clyde, you hit the nail on the head! I don’t pay a carpenter time in labor for him to take the tools from his truck to the actual jobsite within the building. I pay that person for the time they spent working on the job; no more, no less. PPE is nothing more than a required ‘tool’ for the job and should be handled in exactly the same way.

  • Paul Marotto

    In regard to compensation of walking to and from the work stations if the employees are not allowed to bring their PPE home and must report to a company owned locker room to don and doff PPE then yes the company should pay for walking time. If employees signed a contract stating otherwise then they must sleep in the bed they made till the contract is up for negotiation.

  • Bill G

    These issues usually only arise because someone decides to turn a 1-2 minute function, into a 1/2 hour break. As to showers, unless there has been an accidental exposure, cleanliness is the employees responsibility.

  • Paper Maker

    I work in the paper industry and have worked in and visited over 200 paper mills over the past 35 years. Some mills have employee locker rooms outside the gate and some have them inside the mill. In the former, you go to the locker room, take care of whatever business you have and then clock in. In the later, you clock in and then go to your locker to change and whatever. Thus, in the former, the employee changes, showers, shaves, etc. on his own time. It is a little hazier for the later. Because of “partner responsibility” and the fact that no overtime is paid for being in the locker room either coming or going, the employees are also essentially doing their business on their own time. In every paper mill I know of, safety shoes, eye protection, ear protection, etc., (ALL forms of PPE) are required after you leave the locker room to go to your work station. However, if specialized PPE is required during the shift (fall protection, flame retardant clothig, face shields, etc.), the employees are on the clock while donning this equipment. So, you can see that this can be a pretty complicated issue.

    On the “reality check” side of this question, this just goes to show how ridiculous things like “work rules” get when unions get involved.

  • Steve

    One aspect not addressed in the article – can the employees don the PPE off-site or must they be on the employer’s property to be able to dress for work?

    One aspect the court got WRONG; flame retardent clothing – such as Nomex® – IS PPE, not common clothing. If I can not take it home and dress there before I report to work, then changing clothes is part of my job. Pulling on a jacket and hard hat is a negligible task and could conceivably be excluded from compensable time if I can otherwise dress for work at home. I see the ability to dress off site as the primary factor in ultimately determining the compensable nature of the task. If I can take my flame retardent clothing home, then I don’t deserve pay for the task. If I must keep it at the work site, then dressing should be a compensable task.

    The presence of a collective bargaining agreement specifically excluding compensation for the time spent dressing in PPE at the beginning and ending of each shift constitutes a binding agreement on all parties. This small twist makes it a moot point, but in the absence of it, I falll back to when and where the protective clothing may be donned and doffed. If I can do it off site and at my leasure, then it is not compensable time. If I can not don or doff special clothing off site, then it is a compensable work task.

  • RWA

    In all the years that I worked customer service, I never got paid for putting on a uniform. You didn’t get paid until you were ready for work. I agree that the court above ruled correctly on the case. I would only disagree if the time taken to put on the equipment took a significant amount of time. They shouldn’t be “on the clock” until they are ready to work. If they had to punch in before and after every shift, that would make it easier to examine. Getting paid for the walk is ok so long as they are punched in and ready to work, but then again I don’t know the full circumstances.

  • Marianna

    Since the court found that the employees were not performing a principle (compensable) part of their work day by donning and doffing their PPE, but merely changing clothes; it makes no sense to send the second part of this suit to trial. The second issue is mute once the court decided as it did on the first.

  • Bob K

    Every company I’ve worked for, union and non-union has been that at start time, time clock or not, your ready to go to work at the appointed time. Dressed, with required PPE and tool box open or whatever ready to go. In return, the last 10 to 15 minuets (depending on the company) of the day before you go off the clock, is personal time to clean up and change into personal clothes and be ready to go home at the appropriate time. I’m glad the court upheld such a frivolous law suit. If they didn’t then there’d have to be a time you couldn’t not exceed in donning or doffing, and if I drew up that policy the time would be the average time it took me and three supervisors to don and doff or you could be subject to disciplinary action.

  • Effie

    What a ridiculous notion! Nurses who work in specialized units such as the operating room have been required to change clothes in a locker room before clocking in forever and have never gotten paid for it. I think that would qualify for this discussion since you cannot wear street clothes or even a nursing uniform that has been worn outside of the operating suite. They are paid for the time they spend putting on masks, hats, shoe covers, and gowns because these are put on immediately outside the room. They are not paid for time spent showering and changing back into their own clothes at the end of the shift. What a monumental waste of time and money when common sense could solve the problem.

  • Paper Maker

    Effie, The law is NEVER about common sense! It is about the rule of law….and as Charles Dickens’ Mr. Bumble said, “…the law is a ass.”

  • Paper Maker

    Marianna, forgive me, but the word is “moot”, not “mute”. There is a big difference! ;-)

  • mike R

    I think the question comes down to the definition of “clothing.” If the employees are permitted to walk out the door on the way home with this “clothing” on, then I agree that it should not be compensable, however, if they are not permitted to drive home dressed in this apparrel, and must change to be able to go home, then they should be compensated. If they can wear the PPE home, they can wear it to work, as well.

  • http://lcfacilicore.biz John Lippitt

    As a regulator, consultant, contractor, and trainer, I have had this discussion many times over the past 30 years. The concern I have is the message that is being sent when companies say safety is a top priority, then argue about whether they should pay workers to donn and doff the PPE required to perform the job safely. I doubt going to court over the issue improves the perception that the company “walks the talk.”

    There are always going to be workers that attempt to take advantage by taking excessive time to donn and doff PPE, when they are being paid. But, I fear the wrong message is sent when no provisions are made for a realistic time frame to donn and doff PPE. If safety is truly part of the job (which I believe it should be) then allowing reasonable time to dress out is not unreasonable. In this context the key issue to be resolved is how much time is reasonable.

    Workers that want to keep their jobs will generally focus on doing what they perceive their managers and supervisors want them to do. If management’s is perceived to not really care about and support consistent safe behaviors and practices, it is unlikely workers will practice consistent safe work practices and behaviors. Given the excessive direct and indirect costs associated with accidents, injuries, and illnesses that result when PPE is not used properly and maintained in good working condition, is it really that expensive to pay for a reasonable amount of time to donn, doff, clean and properly store PPE?

  • Ed Sullivan

    If you ask me it is a shame we have to worry about these little things. I know if you have a large work force it can be a substantial saving to eliminate this change and walk time, however this is a petty amount per individual to worry about when the management and CEOs are making such exhorbitant amounts of money. Lunches, dinners, golf outings in my mind would be a much better direction to look for cost savings. Maria was talking about a 7 minute alotment of time for getting your equipment on and to your work station, or possibly 14 minutes total a day. I am management and I will tell you this, “It will cost you much more per year in lost production due to low morale than it will to pay these individuals to don and doff thier PPE.” If you want to make cuts start with management, thier is always more waste and fat the higher you go.

  • Paper Maker

    Mr. Lippitt,

    Your second sentence says a lot: I think one of the problems is the fact that safety is a priority and not a VALUE in too many companies. Priorities change with changing situations. VALUES do not. When safety is a core value of a company, the types of issues discussed here do not even come up.

    Your third paragraph brings to mind what I call the “safety psychological dichotomy”: “I don’t want to be hurt, but hey, if management doesn’t care if I wear the proper PPE for a task, then why should I?” This dichotomy is a result of safety NOT being a core value in the hearts and minds of the company (management) and the workforce.

    I recently visited Milliken & Co. in South Carolina. Safety is a core value on steroids at that company! What we saw was amazing. This company has 10,000 employees in 62 locations and has a would-wide OSHA incident rate of 0.55. They have been below 1.0 for almost twenty years.

  • mike R

    Paper Maker makes an interesting point about the “safety psychological dichotomy.” Safety is about people. If you don’t value your people or if the people do not value themselves, then safety goes out the window.

    I have never been to Milliken. In the example about Millliken, you attribute it’s low accident rate to a “safety being a core value on steroids.” I have worked where the “Safety Record” was important, not the people. That image flashed in my head as I read. I can just imagine someone thinking about reporting an injury at a company with such a record— if they didn’t die, it didn’t happen. I can also imagine a company that is so anal retentive that it is not very productive and competitve, where more is spent on getting dressed and undressed for “safety” than getting the job done. I really hope that Milliken is the company you say it is, but my experience informs the images in my mind. That may be the other side of the psychological dichotomy.

  • Terri Padana

    I agree with John Lippitt. He is “right on.” Practicing safety is how employees become safety conscience. If we expect our employees to think “safety”, we need to set an example and show them that their PPE is a very important part of their job. It’s considerably less costly in the long run to pay them for the time to dress properly. (nurses included)

  • Teri B.

    It’s nonsense like this that is pushing the cost of goods and services through the roof. Maybe with 12% unemployed i n Oregon, this is the time to just suck up those few minutes it takes to change into PPE before work. I would rather give a few minutes of my day and keep my job. What a horribly litigous society we live in today. Companies are farming manufacturing and services out overseas because of American worker’s sense of entitlement. Stop being children… get your gear on and go to work and stop whinning.

  • Paper Maker

    Mike R, Milliken is indeed an amazing company. They won the Malcolm Baldridge National Quality award in 1989. They are the last standing international textile company left in the US. They have done it through their people-based systems of quality, safety, innovation, etc. The key is the incredible level of employee engagement. The employees own the safety process in their plants. Quality, safety, and Integrity are truly core values to Milliken & Co. I invite you to check them out at http://www.millikenperformancesolutions.com.