Recently, a group of poultry processors brought action under the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL) against their employer seeking compensation for time spent donning and doffing their required protective work gear (Rochelle Mitchell, et al., Plaintiffs vs. JCG Industries and Koch Foods (2013 WL 887985 Northern Dist. of IL, Eastern Div.)).
The work shift at issue was 8½ hours long. The plaintiffs were each paid $7.75 per hour as agreed to when they were hired in June, 2008. The plaintiffs’ work shift included a half hour unpaid meal break. The employer paid the employees from the time a bell sounded, signaling the start of the productions line, at the beginning of a scheduled shift until the time the production line stopped at the end of a scheduled shift. The plaintiffs were required to clock in at least 15 minutes prior to the start of a scheduled shift to allow time to don and doff several required items of clothing including: a lab jacket, a plastic apron, cut-resistant gloves, protective ear plugs, plastic sleeves, guards and a hair net. All of these items were required to be put on before the plaintiffs reached the production line, at which point their shift started.
The plaintiffs claim that it typically took 10 - 15 minutes to properly don the required items. The defendants maintained that this dressing time took approximately two minutes.
Additionally, the defendants forbade its employees from wearing the required protective equipment outside the plant, in the restrooms or in the cafeteria at mealtime. The plaintiffs took staggered 30-minute meal breaks which were unpaid. The workers had to doff the protective equipment before going to the cafeteria area. Likewise, the workers had to don the attire before returning to the production line following their meal break. The plaintiffs alleged that they regularly worked more than 40 hours per week without proper overtime compensation by working before the start of their shifts in order to don the proper attire, through unpaid meal breaks and doffing of their required attire after their scheduled shifts.
The IMWL was silent on whether such compensation was required and looked to the Fair Labor Standards Act for guidance. A provision of the FLSA governing hours worked by employees allowed for a collective bargaining agreement to exclude donning and doffing time from compensation, and in this particular case, the processors were party to such an agreement with their employer. As the court noted, contrary to plaintiffs’ contentions, the case law that has developed in this area, which almost entirely supported the defendants’ position, is not premised on the assumption that the employers can require employees to perform tasks for free as long as such tasks are not specifically defined as “work” under applicable statutes. Rather, the law appears to rest on the notion that employers and unions can exclude compensation for donning and doffing through collective bargaining agreements, while presumably giving employees benefits that they might otherwise receive, at least until a state changes its laws (as Wisconsin has) to provide otherwise.
Accordingly, the court granted the employer’s motion for summary judgment and found that: (1) the processors were not entitled to compensation for donning and doffing protective gear and (2) the processors were not entitled to compensation for time spent traveling to and from processing line after donning, or before doffing, protective gear.
Being aware of what you can and cannot negotiate in a collective bargaining agreement (or include in an employee handbook) is critically important in terms of avoiding or winning "donning and doffing" litigation. Our Labor & Employment team can be of help when these issues arise. It is better to be aware of the issue in advance of labor negotiations than to have to react to the situation after the fact.