Supreme Court Ruling Sides with Workers on Donning and Doffing of PPE Question

Employers must pay their workers for the time it takes them to walk to and from the production floor after putting on and before taking off required safety gear, the Supreme Court ruled Nov. 8.

The high court also ruled that workers must be compensated for the time they spend waiting to doff (take off) safety gear, but the court concluded that workers are off the clock when waiting to don (put on) the first piece of safety gear at the beginning of the workday.

Although it wasn't one of the principal questions the high court was tasked to answer, the Supreme Court agreed with the opinions of two appeals courts that workers must be considered on the clock when they're in the process of donning and doffing their safety gear. Supreme Court Justice John Paul Stevens, who wrote the Nov. 8 opinion, pointed to a 1955 Supreme Court ruling that reached a similar conclusion.

The Supreme Court opinion is, for the most part, a victory for workers in Washington and Maine who filed two similar lawsuits against their respective employers contending that they should be paid for the time it takes to don and doff safety gear as well as the associated walking and waiting time. The lawsuits were filed by workers at a Pasco, Wash., slaughter and meat processing plant now owned by a subsidiary of Tyson Foods Inc. (IBP Inc. vs. Alvarez et al.) and workers at a poultry processing plant in Portland, Maine (Tum et al. vs. Barber Foods Inc.).

Although two federal appeals courts agreed that workers should be paid for the time it takes to don and doff safety gear, they were split on the issues of compensation for walking and waiting times.

When the two lawsuits reached the Supreme Court as one consolidated case, the high court was tasked to answer two questions:

  • Whether the time employees spend walking between the changing area and the production area is compensable under the Fair Labor Standards Act (FLSA) of 1938 as amended by the Portal-to-Portal Act, and
  • Whether the time employees spend waiting to put on protective gear at the start of the workday is compensable under FLSA.

High Court: Donning/Doffing are "Principal Activities" of the Job

The Supreme Court reached the unanimous opinion that workers must be paid for post-donning and pre-doffing walking times, because such times are not excluded by the Portal-to-Portal Act and therefore are covered by the FLSA.

The high court based this conclusion on previous Supreme Court opinions as well as interpretations of FLSA made by the high court and the Department of Labor over the years.

Stevens notes that the high court's 1946 interpretation of FLSA in Anderson vs. Mt. Clemens Pottery Co. was that employers must pay their workers for time spent walking from time clocks near the plant entrance to their work stations essentially defining the workday as beginning when workers clock in.

However, the Portal-to-Portal Act, passed by Congress in 1947 to amend certain parts of the FLSA, says employers do not have to pay their workers for walking to and from the location where the "principal activity or activities" of the job are performed. The act also says workers are off the clock when performing activities that are "preliminary to or postliminary to said principal activity or activities."

Consequently, the key question confronting the high court was whether donning and doffing safety gear and the associated walking and waiting time were considered principal activities by the Portal-to-Portal Act.

Stevens points out that the Supreme Court in 1955 (Steiner vs. Mitchell) ruled that workers in a battery plant were entitled to compensation for the time spent between changing into protective clothing at the beginning of a shift and showering at the end of the shift.

In the 1955 case, the high court reached the conclusion that the principal activities of the job encompass any activities that are an integral and indispensable part of those principal activities, including the donning and doffing of safety gear "before or after the regular work shift, on or off the production line." In other words, as Stevens explains, any activity that is integral and indispensable to the principal activity of the job is itself a principal activity under the Portal-to-Portal Act.

"Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision," Stevens wrote, "and as a result is covered by the FLSA."

The high court, however, concluded that the time spent waiting to don the first piece of safety gear at the beginning of the workday is not covered by FLSA and, consequently, is off-the-clock time.

"In short, we are not persuaded that such waiting which in this case is two steps removed from the productive activity on the assembly line is 'integral and indispensable' to a 'principal activity' that identifies the time when the continuous workday begins," Stevens wrote.

Chao: High Court Ruling 'A Tremendous Victory'

Secretary of Labor Elaine Chao, in a statement released Nov. 8, called the Supreme Court decision "a tremendous victory for low-wage workers across the country and the Department of Labor."

"The Supreme Court vindicated the department's position that employees in meat and poultry processing plants must be paid for the time they spend walking between the place where they put on and take off protective equipment and the place where they process the meat," Chao said. "These private cases, in which the government filed amicus briefs, are the culmination of this administration's initiative to compel poultry processors to pay their workers for all hours worked. We will now move ahead to assure that all affected companies pay their employees correctly."

The Service Employers International Union (SEIU), in a statement, lauded the opinion as "a victory for American workers."

"The court unanimously sent a strong message that employers cannot skirt the rules enshrined in the Fair Labor Standards Act," SEIU said. "The ruling is especially welcome as more and more employers seek ways to cut costs to the detriment of workers and increasingly interfere with their employees' free choice to form a union.

"We applaud our nation's highest court for upholding the protections and pay standards that workers are entitled to under the law."

A spokesperson for IBP's parent company, Springdale, Ark.-based Tyson Foods, said the company "appreciates the court's clarification of the law" and will "now analyze what impact, if any, these rulings will have on the company."

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