While the time it takes to “don and doff” may seem incidental and trivial, if it takes as little as 15 minutes a day, do the math: over an hour of overtime per employee at the end of each 40-hour week translates to tens of thousands of dollars in overtime compensation in a large workplace such as a meat packing plant like Tyson Foods.
No wonder employers look for ways to avoid the extra cost if possible; but can they do so without violating Tennessee wage and hour laws?
In 2013, a federal district court in Nashville ruled in a collective action for alleged unpaid wages that the Tennessee Wage Regulation Act provides no private right of action to aggrieved employees (Abadeer v. Tyson Foods, Inc., No. 3:09-cv-00125 (M.D. Tenn. Oct. 3, 2013). The U.S. District Court for the Middle District of Tennessee, however, ruled that the employer violated the Fair Labor Standards Act and breached its employment agreement with the employees by failing to pay them for all hours worked, including pre- and post-shift activities.
Tennessee Donning and Doffing Lawsuits: Clothes v. Protective Clothing
Based on the definition of clothing, some rulings have favored employers, others employees.
In IBP v. Alvarez, 546 U.S. 21 (2005), the Ninth Circuit concluded that protective equipment does not fit within the definition of “clothes” and thereby making compensable the time workers spend donning and doffing that equipment.
But in Sepulveda v. Allen Family Foods Inc., 591 F.3d 209 (4th Cir. 2009), the court ruled that donning and doffing personal protective equipment in a chicken processing plant was “changing clothes”. The court held that the “standard safety equipment” at issue—steel-toed shoes, smocks, bump caps, aprons, gloves, sleeves, hairnets, ear plugs, arm shields, and safety glasses—easily qualified as clothing or clothing accessories under a standard dictionary definition.
In Arnold v. Schreiber Foods( Case No. 09-cv-00744, 2010) the Tennessee district court held that sanitary clothing and related items worn by dairy processing employees were defined as clothing.
The Walking and Waiting Rule
Also in 2005, the Supreme Court held that time spent walking between the locker rooms where meat processing workers donned their protective equipment and the production area was compensable. A report for the meat institute said that,” although most of the ruling in Arnold v. Schreiber Foods is favorable to employers, under the FLSA, pre-shift donning time was not compensable but making subsequent walk and waiting time was compensable.
Tennessee Donning and Doffing History
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By 1970 the Occupational Safety and Health Act started to require that certain employees wear protective clothing and equipment – wearing gear like hazmat suits were likely unrecognizable to their predecessors. In 2005 the Supreme Court held that donning and doffing protective clothing is “integral and indispensable” to work rather than “incidental”. As a “principal activity” it is part of the “continuous workday,” and compensable under the FLSA.
Still, donning and doffing is a main wage and hour issue in Tennessee. Complaints are on the rise and litigation is ongoing…