PUBLICATIONS

Wage and hour lawsuits under the Fair Labor Standards Act (FLSA) are becoming increasingly fertile ground for litigation. Why is that? The FLSA provides that plaintiffs’ lawyers will receive attorney fees if their suits are successful. Most alleged wage and hour violations could potentially impact entire groups of employees, which in turn can increase damages. The allure of attorney fees and big verdicts has put FLSA lawsuits high on the radar of many plaintiffs’ lawyers.

 

Donning and doffing cases are a frequently litigated subject area under the FLSA. In such cases, the issue is whether employees should be paid for the time spent donning and doffing protective gear. While these cases often turn on their own, unique facts, employers are often required to pay for such time. A case decided earlier this month, however, illustrates that courts may not require unionized employers to pay for time spent donning and doffing under certain circumstances.

In Kassa v. Kerry, Inc., unionized employees filed suit under the FLSA claiming they were entitled to compensation for the time they spent donning and doffing hair nets, beard nets, safety glasses and uniforms. The employer asked the court to dismiss the case, and alleged Section 3(o) of the FLSA exempted it from having to pay the employees for their donning and doffing time. Section 3(o) provides that unionized employers are not required to pay employees for the time spent donning and doffing “clothes” if the employer has a “custom or practice” of nonpayment.

 

The court began its analysis by noting that in order for dismissal to be proper, the employer must show that: (1) the gear in question should be considered “clothes”; and (2) the employer’s history of nonpayment had risen to the level of a “custom or practice.” With respect to the first issue, the court noted that whether something can be considered “clothes” depends in large part on how specialized it is. The court looked to other cases where items such as knife holders, protective mesh gloves, and hard plastic arm guards were not considered “clothes.” By contrast, the court stated that the uniforms and safety glasses at issue in this case were considered “clothes” because they fall within the ordinary meaning of the term. The court acknowledged that hair and beard nets might not be considered “clothes” as that term is ordinarily used, but stated that this issue was not important. Because it only took the employees a few seconds to don and doff the hair and beard nets, the court determined that it was a de minimus activity that had virtually no impact on the length of their workday.

 

While the court found in favor of the employer on the “clothes” issue, the court refused to dismiss the employees’ case because it determined that the employer was unable to show that it had a “custom or practice” of not paying for the time spent donning and doffing. The court noted that the employer’s collective bargaining agreement did not state that donning/doffing time would be unpaid, nor was the employer able to show that the union raised and then abandoned the issue during contract negotiations. Contractual and bargaining history silence, however, will not necessarily sink an employer with respect to the “custom or practice” issue. The court stated that an employer could still show a “custom or practice” if its nonpayment of donning and doffing time has lasted for a sufficient period of time, and if the employees and the union have knowledge of the nonpayment and acquiesce in it. Applying this standard, the court noted there was no evidence that the employees ever raised the donning/doffing issue among themselves, which indicated that neither the union nor the employees “knowingly acquiesced” in the employer’s policy of nonpayment. Given the lack of knowing acquiescence, the court held that the employer’s six-year history of nonpayment was an insufficient period of time to show a “custom or practice” of nonpayment.

 

 

If your employees spend time donning and doffing protective gear or clothing, chances are that you may soon be dealing with this issue in court or before the Department of Labor, if you haven’t already. Advance preparation is key. If your employees are unionized, see if your collective bargaining agreement speaks to donning and doffing. If not, review your bargaining notes taken during prior negotiations to see if the issue came up. You may also want to review prior grievances. If you are able to show that the employees and union have knowingly acquiesced in your nonpayment of donning and doffing time, you should be wary of including language in new collective bargaining agreements that could minimize the relevance of past practice, such as a zipper clause.

 

If the sufficiency of your custom or practice of nonpayment is questionable, you may want to think about ways to strengthen it. For example, you could propose contractual language the next time you negotiate a collective bargaining agreement stating that the time employees spend donning and doffing will not be compensated. There are two possible downsides to this option, however. The first downside is that proposing donning and doffing language might raise a “red flag” with the union. The other downside is that the union may not accept the proposal, which will make it much more difficult for you to show a “knowing acquiescence” in your prior nonpayment. In light of these concerns, it may be more beneficial to stay silent and attempt to build a sufficient showing of “custom or practice” by simply maintaining the practice with the hope that it will continue to go unchallenged for a considerable number of years.

For additional information regarding donning and doffing issues, please contact the author of this Alert, Don Lee, an attorney in Ford & Harrison’s Atlanta office, dlee@fordharrison.com, 404-888-3861, or the Ford & Harrison attorney with whom you regularly work.