The Federal Third Circuit Court of Appeals recently sent an earthshattering reminder to companies about both the importance of complying with critical wage and hour laws and the legal need to pay employees for all time worked. A Pennsylvania employer, East Penn Manufacturing Co., now owes over 11,000 hourly workers $22 million in back pay for time spent dressing and showering after the Court determined that these workers were entitled to compensation for the time they spent putting on and taking off their protective gear (also commonly known as ‘donning and doffing’) to perform their job duties.
Rather than recording and paying for the actual time spent by the employees donning and doffing their protective gear and showering after their shifts, the employer instead granted the workers a five-minute paid grace period before the start of their shift and a 10-minute paid grace period at the end of their shift. However, at trial it was found that employees actually spent more than 15 minutes at the beginning of their shift and 11 minutes after their shift completing these necessary tasks.
The Company argued that any violation of the federal Fair Labor Standards Act (“FLSA”) was “de minimis,” as the donning and doffing activities were claimed to be not actual work activities, an argument ultimately rejected by the court. Because of the nature of the job, and having to work around hazardous materials, the changing and showering activities indeed constituted work; otherwise, according to the court, employees would not have been able to perform the required duties they were hired to do with lead and other hazardous substances. The employer also argued alternatively that paying its employees for the actual amount of time spent changing and showering could lead to employees acting in a dilatory fashion in completing the tasks to increase their possible payout. The Third Circuit responded that in cases of such abuse, employees could always be disciplined if the employee takes too long to complete the required tasks.
For employers, this case is a critical reminder of the importance of ensuring that you pay your employees properly and always include an accurate accounting of all actual work time. Interestingly, the Third Circuit did not prohibit the payment for a “reasonable” amount of time for employee activities not considered “work,” as the employer tried to do here, but the court failed to delineate how an employer is supposed to draw that legal line so acting in such a fashion could be legally perilous. Therefore, it is important as always that an employee’s paid time either equal or exceed the time actually worked, and pre-and-post-employee activities that are necessary for the employee to perform all required tasks should importantly be accounted for in that calculation. Otherwise, you could be the next employer in this kind of predicament.
