By Sara J. Ackermann
November 11, 2005
On November 8, 2005, the United States Supreme Court unanimously held that the time employees spend walking to and from the production floor after putting on (“donning”) unique protective clothing  and gear and before taking off (“doffing”) such gear, as well as time spent waiting to take off such gear, is compensable under the Fair Labor Standards Act (“FLSA”). However, the Court also held that the time employees spend waiting to put on the first piece of gear at the beginning of the work day is not compensable. IBP, Inc. v. Alvarez, et.al, 03-1238 (Nov. 8, 2005). The Court’s decision on these consolidated cases, brought by employees of IBP, Inc., a large producer of fresh beef and pork products and Barber Foods, Inc., a poultry processing plant, is summarized below.
Walking Time Is Compensable. The employers argued that although the act of putting on and taking off unique protective gear is compensable, the walking that occurs immediately after putting on and immediately before taking off the gear, as well as the time spent waiting to remove such gear, should be excluded from the FLSA’s coverage. The Supreme Court dismissed this argument because a locker room where unique protective gear is put on or removed is a “place of performance of the principal activity” for which the employee is engaged. Id. at *7. Therefore, the Court observed, although walking to the locker room before commencement of the work day is excluded from the FLSA’s coverage, the FLSA includes walking from the locker room to another area within the plant. Id. In addition, as taking off unique protective gear is a “principal activity” under the statute, time spent walking to the locker room before taking off the gear and time spent waiting to do so is also covered by the FLSA. Id. at *10.
Initial Waiting Time Is Not Compensable. Barber Foods, Inc. also argued that the time an employee spends waiting to put on the first piece of gear should not be compensable time under the FLSA. The Supreme Court agreed. The Court noted that “the fact that certain pre-shift activities are necessary for employees to engage in their principal activities does not mean that those pre-shift activities are ‘integral and indispensable’ to a ‘principal activity.'” Id. at *11. Accordingly, the Court found that time spent waiting to put on unique protective gear prior to the commencement of the workday is not a principal activity and therefore is not compensable time. Id.
What Wisconsin Employers Need To Know. Although the Court’s decision only addresses the federal FLSA, the Wisconsin Department of Workforce Development interprets Wisconsin’s state wage and hour laws in such a manner as to be consistent with the FLSA. Therefore, regardless of whether you are subject to state or federal law, keep the following principles in mind when paying your non-exempt employees:
Employees Must Be Paid For:
Employees Need Not Be Paid For:
-Time spent putting on or taking off unique protective gear or clothing.
-Time spent walking from a company locker room after putting on such equipment.
-Time spent walking to the company locker room before taking off such equipment.
-Time spent waiting to take off such equipment.
-Time spent walking to the company locker room prior to the commencement of the work day.
-Time spent waiting to put on unique protective gear or equipment prior to the commencement of the work day.
– Other “pre-shift” activities.
If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.
 “Unique” protective gear includes chain link metal aprons, vests, plexiglass arm guards, and other elaborate protective gear. Hard hats, ear plugs, safety glasses, and boots are not considered “unique” protective gear and the donning or doffing of such gear is not compensable.
This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.
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