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Donning, Doffing and the FLSA

June 28, 2011

PPE, Utah Safety Council

Recently the 4th Circuit Court of Appeals ruled in Perez v. Mountaire Farms [4th Cir., No. 09-1917 (June 7, 2011) that time spent by employees “donning and doffing” protective gear at the beginning and end of the work day is compensable “work” under the Fair Labor Standards Act (FLSA). The ruling included time spent taking off and putting on said protective gear before employees take their unpaid lunch breaks. The ruling stipulated that the work should be paid at the normal 40 hour rate (excepting situations where overtime was required). Mountaire Farms slaughters, processes and distributes chickens and the employees who work on the production line are required to wear protective gear which takes approximately 10 minutes to put on and take off, including sanitization which occurs several times a day.

Seems obvious.

However, within the context of a recent consulting engagement I encountered the question of whether or not employees who are required to wear personal protective equipment (PPE) in line with the hazard analysis of their work should be suited up and ready to work at their exact start time. The common policy in this particular industrial environment was to allow for 7 minutes of “grace time” for employees to clock in, suit up and report to their stations; ready to work. The problem arose when employees straggled in after the 7 minute grace time, not wearing their PPE and not ready to work. It should be noted that the PPE in this particular industrial manufacturing environment was minimal and perhaps less than what OSHA would agree was required. Nonetheless, employees still had trouble getting to their work stations on time and ready to work. This caused me to question the psychology of the 7 minute rule and further, to consider whether enforcement of the 7 minute rule had been consistent. Additionally, and importantly, enforcement of PPE had been inconsistent as workers were not wearing PPE at all in some cases.

Contrasting this industrial manufacturing environment with Mountaire’s environment, the donning and doffing process at Mountaire was more time consuming and necessary considering the fact that employees might end up taking breaks and lunch with freshly slaughtered chicken all over them: an obvious health risk and downright gross. Mountaire had not been paying hourly employees to suit up and thinking in terms of ten minutes at the beginning and end of the day, along with two breaks and lunch, donning and doffing could accumulate to 80 minutes per day. That’s 400 minutes per week or nearly 7 hours. In this case, Mountaire’s employees had a sound case and could have ended up losing at least 384 hours’ time over a 52 work week year (assuming no vacation, etc.). Hypothetically, had Mountaire conducted a job analysis and acted accordingly, the FLSA case might never have come to fruition. From a big picture perspective, there are many industries that are affected by such questions and clearly the little things add up.

The case for job analysis and current job descriptions, along with current hazard analysis, is easy to make but sometimes difficult to keep up with when day-to-day demands of running the business take priority. Perez v. Mountaire is an important reminder to keep a constant eye on employee relations vis-a-vis a fresh understanding of what is required for each job within an organization. Adjustments and minor changes can occur regularly and unless there is an annual, scheduled review of job and hazard analyses – perhaps via an internal audit, these changes can and will slip through the cracks.

As an example, while the job descriptions at the industrial manufacturing company were current, hazard analyses had not been updated since 2004 and several changes to job procedures and/or regulatory requirements had occurred. My recommendation was not to wait until someone had been hurt or filed a complaint and to implement an annual reminder to revisit analyses, unexciting though it may be.

Perhaps the revisiting should be considered a metaphorical managerial “donning and doffing”. It’s necessary.

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