Donning and Doffing: Dress on Your Time or California Overtime?

Sacramento, CAA large number of the workforce - from cops to meat packers - spend time each day donning and doffing, i.e., time spent each day dressing in protective gear or work-related clothing and later removing it all before going home. There is also a growing number of California overtime lawsuits filed by disgruntled workers who claim they should be paid donning and doffing overtime.

A number of donning and doffing overtime class-action lawsuits have been settled, while others have been dismissed. In the case of peace officers, both have occurred. In January 2012, the U.S. Supreme Court decided not to hear an appeal of a donning and doffing lawsuit filed against the city of San Diego by its police officers. They were seeking back pay and overtime for tasks including putting on their uniforms and answering e-mails before coming to work. In a nutshell: They were told to dress on their own time.

A similar lawsuit was filed in 2005 against Orange County. Sheriff’s deputies were also seeking overtime payment for time spent donning and doffing uniforms and other tasks. The county prevailed at trial level but the case was appealed by deputies to the 9th U.S. Circuit Court of Appeals, which sided with the city in the San Diego case. A decision from the appellate court is pending.

But the city of Oakland, California, settled a donning and doffing suit filed by police officers by giving extra vacation time and cash payments to retired officers.

Meanwhile, the Supreme Court in February 2013 revisited Section 203(o) of the Fair Labor Standards Act (FLSA), which excludes time spent changing clothes or washing at the beginning or end of each workday from the definition of “compensable time” if it is treated as non-work time by a collective bargaining agreement. Since 1997, what qualifies as “changing clothes” has been undetermined. For instance, if it includes protective equipment, what does that equipment constitute?

When it comes to food safety, donning and doffing overtime prevails. Six hourly meat processing employees of Tyson Prepared Foods, Inc. in Wisconsin filed an overtime class action claiming they are entitled to compensation for time they spend at the plant donning and doffing sanitary and protective equipment and clothing as required by Tyson. They also time spent walking to and from workstations after donning and before doffing these items.

The circuit court granted summary judgment to Tyson arguing that donning and doffing this gear is not compensable because it is not “integral” and “indispensable” to principal work activities of the employees. The employees appealed and the Wisconsin Appeals Court agreed with the employees. It determined donning and doffing constitutes “preparatory and concluding” activities that are “an integral part of a principal activity,” and therefore the donning and doffing time is compensable. Tyson Foods also operates in California, as does the Dole Food Company.

A class-action suit was filed against Dole in December 2012, claiming that it didn’t pay workers time for donning and doffing their sanitary suits - including gloves and hairnets, while they packed fresh greens into ready-to-eat packages. The suit alleges that the time Dole’s employees are required to work without pay is “substantial.” Furthermore, Dole routinely violated the California labor law regarding lunch and rest periods because workers need to don and doff their gear again, and that time should not have been counted as break time. The complaint states that “Dole knew or should have known that its policies and practices were expressly contrary to California law and unfair.”