To pay or not to pay for donning & doffing?

A few years back, the U.S. Supreme Court ruled that chicken processing employees had to be paid for time spent putting on and taking off special protective clothing before and after their shifts. Since then, numerous lawsuits have challenged “donning and doffing” pay practices, arguing that it should be paid time.

Now, the 8th Circuit Court of Ap­peals, which covers Minnesota, has provided a bit of clarification: If a collective bargaining agreement or custom says the time isn’t compensable, employees don’t have to be paid for getting into and out of their protective work clothing.

Recent case: Cindy worked at a Con­­Agra food processing plant. Con­­­­Agra required laborers to wear protective gear, pursuant to a col­lective bargaining agreement. To ensure sanitation, ConAgra and the unions had agreed that ConAgra would “fur­­nish and launder” the gear, which remained at the facility overnight. That means employees must change into and out of their gear in on-site changing stations. Essentially, they put on the gear and then clock in; at the end of the shift, they clock out and then remove their gear.

Cindy and other employees sued, claiming they should be paid for that time.

A lower court believed that the workers should be paid for the time, but the 8th Circuit Court of Appeals sided with Con­­Agra. It said this was different from the earlier Supreme Court decision. In that case, there was no union contract addressing protective gear; in this case, there was. (Adair, et al., v. Con­­Agra, No. 12-3565, 8th Cir., 2013)

Final note: The court specifically said it wasn’t following U.S. Department of Labor opinion letters declaring that em­­ployees should be paid under similar circumstances. This case could be headed for the Supreme Court.