Safety and OSHA News

Donning and doffing safety gear: Did contract violate law?

Under their union contract at one company, workers were only paid for their “line time.” They weren’t compensated for the time it took to put on or take off safety gear.

More than 250 of them filed a lawsuit, alleging that their employer violated the Fair Labor Standards Act (FLSA) by not paying them for the donning and doffing time, despite what was in the contract.

The workers were employed by a chicken processing plant owned by Allen Family Foods in Delaware. Their personal protective equipment (PPE) included steel-toe shoes, safety glasses, ear plugs, bump caps, hair nets, sleeves, arm shields, and the following gear required by the USDA: smocks, plastic aprons and rubber gloves.

The FLSA contains a clause that allows employers and unions to agree through collective bargaining to exclude “any time spent in changing clothes … at the beginning or end of each workday.”

This lawsuit turns on two words in that FLSA clause: “changing clothes.”

The workers argued that PPE isn’t the same as clothes, and donning and doffing the gear isn’t changing.

The court rejected both arguments and ruled that the employer doesn’t have to pay for the time spent donning and doffing.

The judges turned to the dictionary to help make their decision. Clothes is defined as “covering for the human body.” The court said the PPE served as a covering.

While the employees argued that layering PPE on top of other clothes doesn’t count as changing, the court disagreed. Changing is defined as “modifying in some particular way but short of conversion to something else.” The judges found putting on PPE to be the same as changing.

One more interesting note from this case: The court’s opinion states that the union had proposed that its members be paid for 12 minutes of donning and doffing time per day. However, that didn’t make it into the contract.

What do you think about the court’s ruling? And is it worth it to pay employees for 12 more minutes a day if it would make them more likely to put on and use their PPE correctly? Let us know in the Comments Box below.

Cite: Sepulveda v. Allen Family Foods, U.S. Crt. of Appeals, 4th Circuit, No. 08-2256, 12/29/09 (PDF).

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  • John

    It’s a common sense ruling and the greedy employees should reimburse the employer.

  • Jason

    We require all of workers being ready to start working at the beginning of their shift. Not 7:05 or 7:10… 7:00!. Our workers don cut-resistant gloves, kickback aprons, safety glasses, and steel toes. We have never had a problem with the workers complaining about being paid while putting these important PPE on. Whats next… getting paid for your commute to and from work?

  • Akula

    IBM chip making facility in Fishkill, NY paid an extra hour per shift just for putting on and taking off clothing for the clean rooms. Otherwise you would have a 1 minute break if the changing time wasnt comped out. Break time and meal time didnt start untill you got to the break room. 12 hour shift, paid 13 hours. 2 breaks and a meal per shift = 6 change outs plus the initial suit up starting the shift and the unsuit at the end of shift. Time adds up.

  • Joe Ray

    Of course it makes sense to pay for the employees, time to put on their PPE. The whole reason we have PPE is to protect employees from risk and reduce the employers workman’s cost. PPE is the least effective method of protection and should only be used if the risk can not be eliminated or engineered out. It is not only our regulatory obligation it is also our moral obligation to pay for the employee’s time to put on their PPE. If the employer installed a ventilation system they would not require the employee to pay for it, would they. If we get fined by OSHA the employee would not be expected to pay for the fine.

    As for the contract, I agree with the court. The union screwed up and made an agreement. The employees have the union speak for them and should have to live with the agreement. If they don’t like what the union agreed to then they should take their own union to court not the employer. Though the labor law allows them to negotiate the donning/doffing time out, I don’t believe OSHA does since it does not deal with pay but does address under workman’s comp. if they employee is injured from the time the employee arrives on property whether the employee has clocked in or not.

  • Angel M

    These employees can not work without the PPE, so in my opinion, the time spent putting on required PPE should be compensable.

  • http://www.safety-assurance.com Tom aka SAM

    I agree with Joe and Angel.

    When I started reading the comments, I thought that John and Jason just didn’t understand the article. I think they read it right but are just don’t get it. They also do not understand the hierarchy of protection.

    PPE is the 3rd choice, just like Joe Ray said. The least desirable choice, but one that still is likely to keep the employee protected from the ‘recognized hazards’ that OSHA WILL fine the company under the General Duty Clause for violations of not giving their employees a workplace free of recognized hazards.

    Go the correct route and engineer out the hazards and see what that does to the bottom line. Or have several WC cases and see what that does to the cost of doing business.

    But again this choice only can be effective if the employees are properly donning and maintaining the PPE.

    Training time must also not be compensable either, I guess. Employees probably don’t want their employer watching them ‘change their clothes’ when doing training on the job.

    One can readily see how silly the court decision is. Someone should give the court personnel some training in safety.

    Sorry, but I am now just rambling at the lack of intelligence. It is often said that common sense is not very common.

  • Berle Tate

    A great part of the reason the company buys (or is forced to buy) the PPE is to protect the employee from injury. The company furnishes the PPE at no cost to the employee. The employee should be willing to provide free time to put the PPE on – for their own protection!

  • Mel

    Anything that is “required” as part of the job should be compensated by the company.Is warmup/startup/prep time for a machine not paid? Safety is a very important part of the buisness practices in todays workplace, would you rather pay a few minutes time for the employees to equip or face a huge fine when they get in a hurry to clock. But , with that being said, the union is to blame in this situation. The issue could have easily been resolved with the contract.

  • Dave B

    My issue is the amount of time employees expect for donning and doffing. An employee should pretty much be able to don/doff a pair of safety glasses, a hard hat, coveralls, gloves and hearing protection in less than two minutes. A few items like respirators, chem suits and safety shoes might require a couple extra minutes.
    Overall, I think employers would be better served by eliminating waste in other parts of the process. Donning and doffing task specific clothing and PPE is part of the job, employers should pay for it.