Unless you’re one of the twelve people in the world who didn’t see The Avengers this summer, you can likely recall the scene where Tony Stark literally “steps out” of his Iron Man suit after landing on his penthouse ledge.  Indeed, the fictional billionaire has perfected the doffing of his hardware to a science—the machines literally unscrew and disassemble the pieces as he walks into his living room.  The entire process takes, at most, 35 seconds of screen time.

But what about Bruce Wayne?  Let’s assume that he’s throwing another five-star gala dinner for Gotham’s elite when he glances out the window and see the Bat Signal against the clouds.  The Joker is on the loose, and Commissioner Gordon needs Batman.  But, unlike Tony Stark, Bruce’s process to get dressed for crime fighting is a bit more involved.  After playing the magic off-tune notes to open the door to the Batcave, he has to wait for the platform to rise out of the floor with his suit, pop open the case, strip down, pull on the body armor, tug on the cowl, snap the utility belt in place (after picking the appropriate gadgets), wave goodbye to Alfred, decide whether he wants to listen to Robin’s whining or let him stay home for the evening, and then maneuver his car through the waterfall and out into the streets.  All in all, it’s a complicated process, and in “real life,” it must take up a good…twenty minutes?   

The purpose for these two analogies was to illustrate the donning and doffing process which occasionally creeps up in an FLSA lawsuit now and again.  In fact, earlier this month, the Eighth Circuit affirmed a jury verdict against beef processing employees at a Tyson Foods, Inc. plant in Lexington, Nebraska.  In that case, Lopez v. Tyson Foods Inc., Case No. 11-2344 (8th Cir. Sept. 4, 2012), 225 workers sued for unpaid wages and overtime under the FLSA and a class action under the Nebraska Wage Payment and Collection Act covering more than 10,000 employees.  Their claim, simply put, was that they should have been compensated for the donning and doffing of items that are not unique to the meat processing industry.  Thus, they claimed they should have been compensated for that time, much as if Batman attempted to charge the city of Gotham for the time spend donning his cape and cowl.

The employees at issue donned personal protective equipment and clothing prior to going out on the production floor, taking it off before lunch, putting it on again after lunch, and then again when they left for the day.  Prior to 2007, Tyson paid the employees four minutes per day for donning and doffing items that the company deemed “unique” to the meat processing industry, and over time, increased the amount of time to 25 minutes.  While Tyson conceded that it was required to pay for the time spent donning and doffing the unique items, it refused to compensate for the time spent putting on or taking off “non-unique” items.

The jury returned a verdict for Tyson at trial.  On appeal, the employees challenged the jury instruction that “[w]hen activities occur pre-shift or post-shift, only the time reasonably spent is compensable.”  They claimed that under the “continuous workday rule,” an employer must pay for an employee’s actual time spent performing a compensable activity.  The Court of Appeals disagreed, and claimed that there was a circuit split on the issue of counting “reasonable” time or “actual” time for such activities.  Interestingly, the court found no clear answer as to the appropriate standard, but also concluded that there was no reversible error because it could not be said that difference between reasonable and actual time would have made any difference in the jury’s verdict.  As a result, the instructions were not in error.

Similarly, the employees challenged the court’s instruction on whether or not donning and doffing was considered “work” under the FLSA.  Specifically, they argued that “work” was a question of law, not of fact, and therefore should have gone to the jury in the first place.  At the end of the day, however, the Eighth Circuit scolded the plaintiffs by telling them that they had “invited any error” themselves by requesting the work issue be submitted to the jury.  The district court did, however, affirm that the handling of unique items was, in fact, compensable.  (So it appears that Bruce could get compensated for the time spent picking out which grappling hook to use, assuming he’s fighting crime in Chicago.)

The Bottom Line:  The Eighth Circuit has largely left the question open as to whether employees should be compensated based on their real or actual donning and doffing time.