Safety and OSHA News

Will employees be paid for time it takes to don, doff safety gear?

A federal court recently decided if an employer had to pay workers for the time it took them to put on and take off protective gear before and after their shifts. 

Employees at ConAgra’s Russellville, AR, plant must don and doff company-provided personal protective equipment (PPE) outside the main production area. Because most employees use time clocks inside the production areas, they aren’t paid for their time putting on and taking off their PPE.

In 2012, the issue came up in negotiations between ConAgra and the employees’ union. The employees have presented evidence that ConAgra agreed to move the time clocks from production areas to changing areas so the employees would be paid for time spent donning and doffing PPE, but the provision wasn’t made a part of the 2012 collective bargaining agreement.

ConAgra didn’t move the time clocks. Recently, the situation ended up in federal court. A district court ruled in favor of ConAgra. The employees appealed to the Eighth Circuit.

The Fair Labor Standard Act (FLSA) says employers may exclude …

“any time spent in changing clothes or washing at the beginning or end of each workday” if the time is excluded “by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”

The employees argued ConAgra couldn’t unilaterally create a custom or practice by refusing to compensate them for donning and doffing time.

But before 2012, ConAgra and the employees “had a long-standing practice of non-payment for donning and doffing for most (but not all) employees at the Russellville Plant.”

The court said since this practice continued after the 2012 collective bargaining agreement took effect, ConAgra didn’t unilaterally impose a custom or practice – it continued one already in place.

For that reason, the Eighth Circuit upheld the district court’s ruling that ConAgra didn’t have to pay the workers for the time they spent putting on and taking off PPE.

(Craig Lyons et al v. ConAgra Corp., U.S. Circuit Crt. 8, No. 17-3134, 8/9/18)

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