CASWELL BELL & HILLISON LLP
FRESNO, CALIFORNIA

IS IT “WORK” TO DRESS FOR WORK?

Under federal and state law, employees may be entitled to wages for time spent “donning and doffing” clothes for work.  Activities closely related to a principal activity constitute an integral part of the employee's principal activity.  Time spent changing into clothes required for the performance of the principal activity is compensable as an integral part of that activity, but changing clothes merely for the convenience of the employee does not entitle the employee to payment of wages.

A recent federal case involved employees at a chicken-processing plant.  Six times a day, for 6 to 10 minutes each time, the workers were required to put on, take off, and clean safety and sanitary clothing that they had to wear while on the job.  The special gear consisted of smocks, hairnets, gloves, earplugs, and safety glasses.

When a dispute arose between the workers and their employer over whether the employees were entitled to be paid during this time, the workers claimed a right to compensation under the federal Fair Labor Standards Act (FLSA).

A jury initially ruled against the workers on the ground that the dressing, undressing, and cleaning activities were not “work” within the meaning of the FLSA.  The jury had been instructed that, under the FLSA, the activities were not work without a sufficiently laborious degree of exertion, such as may be required if the gear were cumbersome, heavy, or required significant concentration to put on and take off.

An appellate court disagreed with the “exertion” standard and ruled in favor of the workers. Under the federal FLSA, it is not appropriate to focus on whether an activity requires a certain level of exertion in deciding whether it is “work.”  Instead, the key for treating an activity as “work” is finding that it is an integral and indispensable part of the primary activities undertaken for the employer’s benefit, and that it is controlled or required by the employer.

This area is subject to interpretation on a business-by-business basis, so it is difficult to draw broad conclusions from the ruling.  Under this factual situation, the employees’ dressing and undressing was an essential part of the job, for which the workers had a right to compensation.

© Caswell Bell & Hillison LLP          Attorneys and Lawyers, Fresno, California