THE ENERGY INDUSTRY ISN’T THE ONLY THING BOOMING: FLSA LITIGATION OVER DONNING, DOFFING, AND PRE-SHIFT/POST-SHIFT MEETINGS
In recent years, there has been considerable litigation on the subject of compensation, or the lack thereof, for time spent donning, doffing, and attending pre-shift/post-shift meetings. Employees (current and former), often banded together as part of collective actions, have sued their employers for alleged violations of the Fair Labor Standards Act (“FLSA”) based upon the fact that they were not paid for time spent donning and doffing protective gear or uniforms and time spent attending pre-shift/post-shift meetings. While this is not a new trend, it is an area that warrants the attention of employers, particularly those that require their employees to don and doff protective gear or uniforms and attend meetings while “off the clock.”
Providing a reminder that these types of actions are still being heavily pursued, a federal judge in Pennsylvania recently granted conditional class certification to a group of hourly employees (all rig workers within the past three years) of an oilfield services company regarding alleged FLSA violations. The two employees who initiated the lawsuit claimed that their employer violated the FLSA by requiring them to don protective gear and attend a pre-shift safety meeting before clocking in at the beginning of their shifts. They also claimed that their employer violated the FLSA by requiring them to attend a post-shift safety meeting and doff their protective gear after clocking out at the end of their shifts.
In analyzing whether you, as an employer, may be required to pay your employees for time spent donning and doffing, consider the following:
- Do you require your employees to don certain protective gear or uniforms prior to clocking in for their shifts? If so, are your employees given the option of donning their protective gear or uniforms at home?
- Do you require your employees to clock out before doffing their protective gear or uniforms?
- Is your workforce organized? If so, does the applicable collective bargaining agreement address the subject of donning and doffing uniforms?
- Does the protective gear or clothing have to be washed or laundered after it is worn? If so, who is responsible for washing the protective gear or clothing (e.g., is the employee responsible, or does your company provide a cleaning/laundering service through which the protective gear or clothing is washed)?
In terms of pre-shift and post-shift meetings, consider the following:
- What is the nature of the meetings and is attendance at the meetings mandatory?
- Do the meetings last for more than a de minimis period of time (i.e., more than a couple of minutes)?
These are merely a few considerations that employers should keep in mind — particularly employers in the ever-growing energy industry, where a significant number of employees may be donning and doffing protective gear and uniforms for work in oil and gas fields. At a minimum, employers that require employees to don and doff protective gear or uniforms and to attend meetings while “off the clock” need to be aware that there may be serious FLSA implications.