When the Time Spent Putting on and Taking off Specialized Attire or Protective Gear Is — and Isn’t — Compensable

An internet meme about lawyers mines humor from the frequency with which attorneys answer questions with “It depends.” Truthfully, “it depends” very often is the right answer, as many legal disputes that appear similar may yield vastly differing results depending on any number of (or sometimes just a few) key factual distinctions. A reply of “it depends” reflects the many wrinkles and nuances within areas of the law, and that includes wage-and-hour law. That’s why, if you have questions about whether something is or is not compensable time under the Fair Labor Standards Act, it is wise to seek out knowledgeable answers from an experienced Atlanta wage-and-hour lawyer.

As a case in point, we can compare and contrast two cases regarding the compensability of time spent donning and removal of safety gear.

In the more recent unpaid hours dispute, the workers were a group of rig hands who worked for an oil company in Pennsylvania. As part of its set of safety rules, the employer required its rig hands to put on “flame-retardant coveralls, steel-toed boots, hard hats, safety glasses, gloves, and earplugs.”

The workers sued, arguing that the employer should pay them for the time they spent putting on and taking off all of this personal protective gear at the beginning and end of each workday. The employer contended that the donning and removing tasks were outside the bounds of what’s compensable under the FLSA.

So, who was right? According to a recent federal appeals court ruling, the workers were.

To understand the outcome, a bit of FLSA law background is helpful. Nine years after the FLSA became law, Congress passed the Portal-to-Portal Act. Under that law, acts related to traveling to/from the workplace aren’t compensable, and neither are acts that qualify as “preliminary” or “postliminary” to the workers’ principal activities. However, if an activity is “integral” and “indispensable” to the worker’s job, then the time spent on it is compensable.

In the Pennsylvania case, the employer argued that the donning and removal of the gear was preliminary and postliminary. The federal appeals court disagreed. In declaring the rig hands’ donning and removing their gear to be integral and indispensable, the court looked at three key factors, one of which was the place where the donning and removal activity took place.

Location, Location, Location!

Regarding the location factor, the court concluded that if the donning and removing of gear occurs on the employer’s premises, then that task is more likely to be integral and indispensable, while if it occurs at the worker’s home, then it is more likely to be preliminary/postliminary.

Five years ago, a different appellate ruling that similarly focused on the donning and removal of special protective gear had some different facts and a ruling for the employer, not the workers.

The workers were sheriff’s deputies in a southwestern Florida county. Their employer required them to arrive at work “wearing a uniform and the following protective gear: a duty belt, a radio case, pepper mace, a baton strap, a magazine pouch, a radio, a flashlight, handcuffs, a holster, a first-responders pouch, and a ballistics vest.”

Like the 3d Circuit, the 11th Circuit Court of Appeals considered location to be a key factor. In the Pennsylvania case, the workers changed at work. In the Florida case, the deputies changed at home.

The 11th Circuit noted that the U.S. Department of Labor, in a 2006 memo, declared it “our longstanding position that if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity, even when it takes place at the plant.” Similarly, federal courts have frequently stated that putting on and taking off “protective gear at home has never been considered work time.”

Because the deputies put on and took off their gear at home, that gravitated against their position. Additionally, the court deemed the gear not integral to deputies’ principal tasks of “enforcing traffic laws, responding to emergencies, conducting investigations, and generally engaging in crime prevention.”

An unpaid hours claim can be complex and fact-intensive. Winning this sort of legal action requires a keen understanding of the law and a strong grasp of the specific facts of the case. If you have questions about a potential unpaid hours claim, get in touch with the knowledgeable Atlanta wage-and-hour attorneys at the law firm of Parks, Chesin & Walbert to get the reliable and experience-driven answers you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.

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