Executive Summary: It is nothing new for farms and manufacturing plants to find themselves subject to collective and/or class action lawsuits by employees claiming they should have been paid for time spent "donning and doffing" work clothes and protective gear, either prior to starting or after completing their shift. Ask the pig farming and meat processing industries about their experiences over the last decade. What is novel, however, is the increase in these types of lawsuits that are being filed by employees in office settings. Thus, claims for unpaid wages related to pre- or post-work activities are no longer just a blue collar concern. To that end, corporate employers are encouraged to make sure that employees are properly compensated for all work they are suffered or permitted to perform, including integral job duties performed either before starting or after completing their shifts.
Donning and Doffing in the Heartland
Over the past decade, blue collar workers have filed a series of Fair Labor Standards Act ("FLSA") lawsuits, some successful, some not, seeking unpaid wages for pre- and/or post-work time spent donning and doffing required work clothes and safety gear. In IBP, Inc. v. Alvarez (2005), for example, the U.S. Supreme Court held that meat plant workers were entitled to compensation for time spent putting on safety equipment since it was a "principal activity" of their jobs. The Court also held that the workers were entitled to compensation for the time they spent walking to the worksite after donning the protective gear, but not for time spent waiting to put the gear on, because such activity was merely "preliminary" under the Portal-to-Portal Act. While these pre- and post-work cases abounded in the heartland, they remained scarce in the corporate realm, until recently.
Claims for Uncompensated Pre-Work Time by Office Workers
A Pennsylvania federal judge recently approved a $6 million settlement in a wage-and-hour collective and class action suit alleging employees were not compensated for duties performed prior to starting their shifts each day. Keller v. TD Bank, N.A. et al., No. 2:12-cv-05054 (E.D. Pa. 9/4/2012). The plaintiffs claimed the bank required that two hourly employees perform a series of security procedures both inside and outside of the bank prior to opening the bank. According to the plaintiffs, these duties took between 15 and 20 minutes daily to complete, and they were not able to record this time in the bank's time-keeping system until the bank opened.
The plaintiffs sued to recover for this uncompensated time. Despite the bank's vigorous defense, which included more than 40 affirmative defenses, the parties eventually agreed to compromise and settle the claims for $6 million including costs and attorneys' fees.
Employers Must Compensate for Incidental Activities that are "Integral" to Job Duties
Under the FLSA, employers must pay covered non-exempt employees at least the federal minimum wage for all hours worked in a workweek as well as an overtime premium for all hours worked over 40 in a workweek. In general, compensable hours worked include all time an employee is on duty or at a prescribed place of work and any time that an employee is suffered or permitted to work.
Moreover, the Portal-to-Portal Act supplements and limits the FLSA by providing that, among other things, time spent by an employee on incidental activities before and after work that are not integral to the employee's principal work activities, including travel by the employee to or from home to work, is not compensable. Incidental activities that are integral, however, such as depositing the mail after the close of business, or changing clothes and showering if required by the employer, generally must be counted as working time.
Employers should carefully determine whether they are compensating their employees for all time that an employee is suffered or permitted to work, including time spent on activities that are integral and indispensable to the employee's principal work duties. Employers who require that their employees perform duties before they have clocked-in or after they have clocked-out could be running afoul of the FLSA. Employers who do require their employees to perform such tasks should implement procedures to track the time spent and ensure that the employees are compensated accordingly.
Bottom Line: Corporate employers are encouraged to make sure that they are properly tracking and compensating employees for all work that they are suffered or permitted to perform, including integral job duties performed either prior to starting or after completing their shifts.