The U.S. Supreme Court in 2005 created a big fuss by ruling that time used to put on or remove some work clothes and safety gear outside actual work hours may be compensable time. As a result, many employers changed the way they calculated pay.
Now it turns out that employers may have been too quick to revise their pay habits for pre- and post-work activities. Recent court rulings have provided clarity on the issue—and the news is generally good for employers.
The message: You generally don’t have to pay for the time employees spend preparing for their workday, such as waiting in security lines or putting on generic headgear and work boots. You have to pay only if the safety equipment is specialized and an “integral and indispensable” part of the work the employees have been hired to perform.
Example #1: No nukes pay
A group of New York nuclear power plant workers filed a Fair Labor Standards Act () suit, saying they should be paid for the 10 to 30 minutes per day they spend passing through security, and suiting up with goggles, safety boots and a helmet.
The court said no, likening the time to commuter or other preparatory time.
The court said that the employees’ prep time wasn’t the sort of activity that was “integral and indispensable” to the primary work activity they would perform. (Gorman, et al., v. Entergy Nuclear Operations, No. 05- 6546, 2nd Cir., 2007)
Example #2: ‘First chicken’ rule
Workers at a chicken-processing plant in Georgia sued, saying they should be paid for time spent donning smocks, gloves and hairnets.
The company didn’t begin paying until the first chicken started down the conveyer belt.
The court agreed with the company. It interpreted the Supreme Court’s 2005 decision to require payment only for donning and doffing special protective gear, not the ordinary clothing these employees changed into. (Anderson, et al. v. Cagle’s, No. 06-10306, 11th Cir., 2007)
Bottom line: When in doubt over whether to pay, get a trusted employment lawyer’s opinion. With the explosion of class-action FLSA cases and the prospect of double damages, you don’t want to make mistakes in pay on your watch.