DO YOU HAVE TO PAY EMPLOYEES WHILE THEY PUT ON SAFETY GEAR?

The current focus on keeping employees safe at work amid the COVID-19 pandemic may prompt broader questions of workplace safety, including what's compensable time for hourly employees. Although it's improbable that such issues would arise in connection with simply putting on masks and gloves, it's still important to be mindful of the latest legal interpretations concerning more significant gear.

Periodically, courts are brought in to rule on whether employees must be compensated for time spent putting on or taking off protective equipment for work. (In legalese, this is referred to as "donning" and "doffing.")

Portal to Portal Act

The legal foundation of rules governing when employees must be paid for the time it takes them to don and doff specialized safety gear was laid by the Portal to Portal Act of 1947. It clarified provisions of the Fair Labor Standards Act of 1938.

In a nutshell, the Portal to Portal Act requires that employees be compensated for "all time during which an employee is necessarily required to be on the employer's premises, on duty, or at a prescribed workplace," according to the statute. This rules out, for example, the time it takes an employee to commute to work in a typical commuting scenario.

The question of whether the time employees spend donning and doffing protective equipment should be compensated was later clarified by the courts. The answer hinges on issues that include whether the:

• Gear is "integral and indispensable" to the employer's "principal activity,"

• Equipment is required by the principal work performed by the employee, and

• Employer benefits from the employee's act of donning and doffing the protective gear.

Splitting Hairs

Inevitably, new questions have arisen concerning how the basic principle of the law would apply in various work scenarios. Courts typically consider three factors in deciding whether donning and doffing time is compensable. The first two are fairly straightforward:

1. Is the equipment required by the employer?

2. How many minutes are involved?

If less than ten minutes in total are needed, courts have tended to rule that the time involved is insignificant and not compensable.

The third factor gets a little more complicated: The nature of the gear itself. For example, if it's relatively generic and easy to put on and take off — such as a hard hat, safety glasses or ear plugs —the time will generally be considered noncompensable. But more specialized and cumbersome equipment — for instance, safety harnesses and shin guards — might tilt the scales in the other direction.

Supreme Court Decision

One dispute that was decided by the U.S. Supreme Court in 2005 (IBP Inc. v. Alvarez) involved time spent by employees at their employer's location waiting to don their protective equipment, putting on and taking off the gear, and walking to and from their workstations from the place where they donned and doffed the gear.

In that case, which involved a meat packing plant, the protective gear was extensive. It included hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings and boots. Because the safety gear was integral to the job, the court unanimously ruled that the employees were entitled to compensation for all time involved — except for the time they had to wait before they were handed clean safety gear to don. That time segment was excluded because, according to the Court, it was a "preliminary activity" that, as described in the Portal to Portal Act, isn't compensable.

However, the Court could have also ruled that the waiting time was compensable if employees had been required to arrive at work at a specific time and the waiting period to receive their safety gear began at that specific time. If, instead, employees were required only to begin their shift at a particular time, it wouldn't have been compensable.

Protecting Your Organization

Despite the various rulings that have fleshed out the details of questions left unanswered by the Portal to Portal Act, the law in this area seems to remain in flux. As a practical matter, you don't want your compensation practices to be the subject of the next court interpretation. If any of your employees need to use specialized safety equipment that takes more than a brief period to put on and take off, there might be ways you can streamline that process to minimize the elapsed time.

For example, if the location where employees do their donning and doffing is relatively distant from their workstations, consider moving it closer to minimize time spent getting from one place to the other. Also, make it as convenient as possible for employees to put the safety gear where it needs to go when their shift is over.

Finally, sometimes it's better to err on the side of caution when it comes to interpreting the meaning of "work." Using a liberal definition of the term, and paying workers accordingly, may enable you to avoid a dispute whose cost would greatly exceed whatever you might have saved by using a narrower definition. When in doubt, consult a labor attorney to learn the latest legal standards on this issue — including laws in your state that might favor employees more than federal standards.