There is a new trend of legal actions against companies whose employees are required to wear protective clothing and gear at work.
Typically the employees are suing for back pay for the time they have spent “donning and doffing” protective wear, that is, changing into and out of required protective gear for their jobs.
The actions seem to be in response to a precedent-setting case in June 2011, in which a federal appeals court wrote in its opinion in the case of Perez vs Mountaire Farms that time spent by employees donning and doffing protective gear at the beginning and end of the work day is compensable work under the Fair Labor Standards Act.
Since that ruling more cases have been filed and settlements soon follow. For example, Butterball Farms Inc. agreed to pay a group of workers $4 million in an out of court settlement over claims that it failed to pay them for putting on, taking off and cleaning protective equipment that they were required to wear on the job.
And in December 2011 another chicken processor, Farmers Pride, agreed to pay $500,000 to settle state and federal class actions alleging the same as the Butterball employees. There is no reason an action couldn’t be brought outside the poultry industry.
Any company where workers don uniforms of any kind or protective gear or clothing can be a target. Attorney Max Heerman, a partner in the Minneapolis law firm Briggs and Morgan, says there are a few ways that employers can combat such cases:
- Argue that donning and doffing cases are not suitable for one-size-fits-all class action treatment, because required gear and pay practices may differ from one class member to the next.
- If the facts are right, employers can win dismissal of donning and doffing cases by showing:
- it was customary not to pay employees for clothes changing,
- the gear involved is not “integral and indispensable” to work because it is ordinary and lightweight, or
- time spent donning and doffing is too small to justify a lawsuit.
- Finally, Heerman reasons, if the case does go to a jury trial, the jury members may not sympathize with the employees’ donning and doffing claims. After all, a common reaction is, “I don’t get paid for putting on my work clothes, why should they?”