January 4, 2010

Donning and Doffing Quashed

Way back in November 2005 we blogged the interesting issue of donning and doffing: whether the time meatpackers spend at the beginning of work putting on protective gear and taking it off at the end of the shift is time on task and compensable. The 2005 ruling of the U.S. Supreme Court went in favor of the workers, but other courts have split on the issue. Now 4th U.S. Circuit Court of Appeals in Richmond has once again ruled against the workers.

The court held that putting on and taking off the gear is "changing clothes" and thus is not necessarily compensable under the Federal Labor Standards Act.

"This sort of fact-intensive determination has classically been grist for the mill of collective bargaining, and Congress ensured that employers and unions could keep it that way by enacting Section 203 (o)," Judge J. Harvie Wilkinson III wrote for the three-judge panel. We assume that the salaried Judge Wilkinson was amply paid during the time he donned his robes to issue the ruling.

Clothes Make the Man
The district court has a rather expansive view of what comprises clothing: workers, members of United Food & Commercial Workers Local 27, each must wear steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a "bump cap," a hair net, rubber gloves, mesh sleeves and arm shields to do the work, which includes the hanging, eviscerating and de-boning of chickens.

"Because many work clothes are protective to some extent, the distinction urged upon us by the employees would be difficult, if not impossible, for courts to administer in a consistent and coherent manner," the judge wrote, before also rejecting the plaintiffs' argument about the definition of "changing."

What is at stake here is fifteen minutes of pay twice each shift, presumably at or near minimum wage. Call it four bucks per shift per worker. With 250 workers involved in the class action suit, that's a total of about $1,000 per workforce shift. Having lost the suit, the workers will be paid only for their gruesome "time on task."

As most of the workers are non-English speaking, the union stewards will have to translate the court's ruling into their native tongue(s). I trust that the workers will be dressed for the occasion in street clothes: it's pretty difficult to understand the court's subtle distinctions when you are encased in steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a "bump cap," a hair net, rubber gloves, mesh sleeves and arm shields. Then again, perhaps their attorney should have made his case in court while dressed in full slaughterhouse regalia: the visual evidence distinguishing ordinary clothing from personal protective equipment might have been compelling enough for even a judge to understand.

| 2 Comments

2 Comments

Would this ruling be applicable to the likes of police/fire workers who are uniformed in protective (required)clothing as well?

What was the 2005 Supreme Court ruling? If they ruled in favor of the workers, why is the federal appeals court looking at the issue again?

Also, I find Judge Wilkinson's hesitancy to define protective gear completely ridiculous. It reminds me of a time (many, many years ago) in high school when I was told that we couldn't wear flannel pajamas to school because it would be possible to write the school dress code in such a way as to differentiate between fully covering flannel pajamas and sheer lingerie teddies.

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This page contains a single entry by Jon Coppelman published on January 4, 2010 10:40 AM.

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