Fashion icon Mark Twain once said, “Clothes make the man.  Naked people have little or no influence on society.”  And, indeed, employers agree, as many of them require their employees to don attire befitting their industrial pursuits.  Mountaire, a company engaged in the slaughter, processing and distribution of chicken and chicken parts, is no exception.  Its employees are required, by company policy and federal regulations, to don various items of protective gear, including smocks, steel-toed rubber boots, "bump caps," gloves and other items, before commencing work on Mountaire’s production line.

In 2006, not wanting to be slaves to fashion, employees at Mountaire's Delaware plant filed a collective action under the FLSA alleging that the time spent donning and doffing their protective gear should be compensable as "work.”

Mountaire’s production line employees typically donned their protective gear at the plant and were required to sanitize it with sanitation solution.  Although not mandated by Mountaire's policies (and in blatant disregard of the fashion credo, "when in doubt, wear red"), employees typically sanitized and doffed their protective gear before taking their meal break to permit them to eat without blood and raw chicken parts on their persons.  They were again required to don their protective gear before returning to the production floor.  At the end of each shift, employees doffed their gear and left their smocks to be laundered by the plant.

After the employees filed suit, Mountaire changed its policy to allow employees to take their smocks home.  Shockingly, despite the change in policy, employees found no occasion to don their fashionable chicken smocks while off the clock, and typically refrained from taking them home.

The District of Maryland certified the employees’ suit as a collective action under the FLSA and, in March 2009, conducted a bench trial.  The court concluded that time spent donning and doffing protective gear at the beginning and end of a work shift and at the employees’ unpaid meal break was compensable as “work” under the FLSA.

On appeal, in Perez v. Mountaire Farms, Inc.pdf., Case No. 09-1917 (4th Cir. 2011), the Fourth Circuit applied the U.S. Supreme Court’s rule that although employers need not compensate employees for “activities which are preliminary to or postliminary to [the] principal activity or activities” of a job, if such an activity is an “integral and indispensable part of the [employee’s] principal activities” it is compensable under the Portal-to-Portal Act.  29 U.S.C. §§ 251-62; Steiner v. Mitchell, 350 U.S. 247, 256 (1956).  The court further applied the Ninth Circuit’s holding in Alvarez v. IBP, Inc., 339 F.3d 894, 902-903 (9th Cir. 2003), aff’d, 546 U.S. 21 (2005), that an activity is “integral and indispensable” if the activity is:  1) “necessary to the principal work performed”  and 2) “done for the benefit of the employer.”

Applying the foregoing standards, the Fourth Circuit partially affirmed the district court’s ruling and found that doffing and donning activities at the beginning and end of the employees’ shifts were “integral and indispensable” to the principal activity of chicken processing and, therefore, constituted compensable “work” under the FLSA.  In reaching its conclusion, the Fourth Circuit relied on the district court’s finding that the doffing and donning activities were “necessary to the principal work performed” because safety and sanitary concerns required it.  The Fourth Circuit also relied upon the district court’s finding that the doffing and donning activities were “done for the benefit of the employer” because, although the protective gear benefitted the employees by protecting them from workplace hazards (and, in this writer’s opinion, conferring upon them the cache of post-apocalyptic couture), it primarily benefitted Mountaire by protecting its products from contamination, keeping workers’ compensation payments down, keeping missed time to a minimum, and shielding the company from pain and suffering payments.  The court further concluded that Mountaire’s new policy of permitting employees to take their smocks home did not change the outcome, as the district court found that where Mountaire provided hampers for dirty smocks and clean smocks free of charge, the change in policy was “illogical” and “impractical”.

The Fourth Circuit abided by precedent in Sepulveda v. Allen Family Foods, Inc, 591 F.3d 209 (4th Cir. 2009), in holding that time spent donning and doffing before and after meal periods was non-compensable as such activities were part of a “bona fide meal period” and, alternatively, de minimis. (The court acknowledged that it if had not been bound by precedent, it would have held that these activities were compensable as work).

The Bottom Line:  It is becoming increasingly de rigeur to compensate employees for time spent doffing and donning work-related protective clothing where the time to do so is more than de minimis, as such activity is typically for the primary benefit of the employer.