An Overview of ‘Donning and Doffing’ in Wisconsin
It’s officially spring. This time of year, we doff our winter gear and eagerly don sunglasses and spring jackets. The changing season also presents a great time to take a fresh look at your employee compensation policies.
For example, do your employees spend time changing into protective clothing and gear before and after their shifts? If so, are you properly compensating them for the time they spend “donning and doffing”? Recent appellate court decisions have made clear that such time is compensable. The following guidelines will help you ensure that you’re properly compensating your employees for their donning and doffing time so you can avoid costly wage and hour litigation.
Donning and Doffing = Changing Clothes
So what is “donning and doffing”? It refers to the time employees spend putting on and taking off protective clothing and gear or equipment related to their work duties. For example, employees in the food industry are often required to wear hairnets, coveralls, and gloves. Construction workers or employees who work on a production line may have to wear hard hats, safety glasses, and certain protective footwear.
While the time employees spend donning and doffing work-related clothing may seem minimal, there has been a flurry of litigation over compensation for such time in recent years. Understanding when that time is compensable could help you avoid costly litigation.
Donning and Doffing is Compensable if it’s ‘Integral and Indispensable’
In United Food and Commercial Workers Union, Local 1473 v. Hormel Foods Corp., the Wisconsin Supreme Court concluded that the time employees spent donning and doffing clothing and equipment at a canning plant was compensable work time. Hormel required its employees to wear sanitary clothing and equipment to meet mandatory federal food sanitation regulations. Local 1473 of the United Food and Commercial Workers union alleged that Hormel was violating wage and hour laws by failing to pay employees for the additional 5.7 minutes of time they spent getting dressed and undressed for work each day.
The court distinguished compensable donning and doffing time from noncompensable preliminary and postliminary activities under the Wisconsin Administrative Code. According to the court, compensable time under the Wisconsin Administrative Code includes activities that are “integral and indispensable to the employees’ primary activities.” An activity isn’t “integral and indispensable” just because you require employees to perform the activity for your benefit. To qualify as integral and indispensable, an activity must be “an intrinsic element with which the employee cannot dispense if he . . . is to perform [his] principal activities.”
The court held that putting on and taking off sanitary clothing was integral to the Hormel employees’ principal activity of canning food products. The court deemed cleanliness and food safety as intrinsic elements of the preparation and canning of food at the facility, and the protective clothing the Hormel employees were required to put on before each shift complied with federal food sanitation regulations. Therefore, donning and doffing the clothing was integral and indispensable to the employees’ primary activities.
Donning and Doffing and the de Minimis Doctrine
Finding the time spent donning and doffing sanitary clothing integral and indispensable to the employees’ principal activities in producing food products at Hormel, the court turned to the applicability of the doctrine of de minimis non curat lex (“The law does not concern itself with trifles”). Under the de minimis doctrine, a court generally considers multiple factors, including (1) the amount of time spent on the additional work each day, (2) the administrative difficulty of recording the additional time, (3) the aggregate amount of compensable time, and (4) the regularity of the additional work.
Hormel argued the de minimis doctrine barred compensation for only 5.7 minutes of donning and doffing time. However, Justice Shirley Abrahamson, who wrote the court’s opinion, disagreed. In light of the employees’ hourly wage of $22, the unpaid time totaled more than $500 per year for each employee. The court explained that because the additional compensation resulted in substantial sums owed by Hormel, it was not a “trifle.”
Donning and Doffing Developments
Only one Wisconsin appellate case has addressed donning and doffing since the Hormel decision in 2016. In Bakkestuen v. Lepke Holdings, LLC, the Wisconsin Court of Appeals held that the time dump truck drivers spent performing initial and concluding tasks before and after loading and unloading their trucks each workday was integral to their primary activities as drivers for Lepke.
The Lepke case didn’t involve the donning and doffing of protective work gear. Rather, the truck drivers sought compensation for the time they spent warming up their trucks, inspecting the trucks before setting out on trips, refueling the trucks, and filling out paperwork required by Lepke. The court of appeals concluded that Hormel controlled the outcome in Lepke. Because the time drivers spent performing their initial and concluding tasks was time spent on activities integral to their primary activities as drivers for Lepke, the minutes were compensable under Hormel.
The Lepke decision was an unpublished per curium case, meaning it has no authoritative or persuasive value. However, it illustrates that Hormel continues to be the seminal case on donning and doffing in Wisconsin. What Wisconsin courts consider compensable time may continue to expand in the wake of Hormel and subsequent case law.
Employee compensation for time spent donning and doffing protective clothing and gear is an issue that certainly will continue to develop in the coming years. Recent appellate court decisions have made clear that employers are responsible for paying their employees for time spent donning and doffing when it is “integral and indispensable” to the work they perform. Failing to compensate employees for such activities may result in costly wage and hour litigation.
A best practice is to install time clocks in the area where employees change their clothes and instruct them to clock in immediately before donning their protective clothing and gear and immediately after doffing it.