Is suiting up for work a part of the workday? An ex-Hershey factory worker and her co-plaintiffs think so.
Citing the necessity of conforming to the Food and Drug Administration’s hygiene demands, the plaintiff is asking for retroactive compensation for the time she needed to don and doff sanitary clothing and other protective equipment. The class-action lawsuit was filed in an Illinois district court on a big day for Hershey — Feb. 14 (Hollifield v. The Hershey Co., No. 3:23-cv-00473 (S.D. Ill. Feb. 14, 2023)).
This suit suggests not compensating workers for such time is a violation of the Fair Labor Standards Act, for which the U.S. Department of Labor has issued guidance surrounding the changing of clothes.
What do the regulations say?
Per DOL’s FLSA regulations, clothes-changing or washing time must be paid if it is indispensable to the performance of the employee's work or is required by law or by the rules of the employer — unless a collective bargaining agreement says otherwise.
What is the don-doff precedent here?
At the time of the first opinion letter in 1997, DOL’s Wage and Hour administrator sought to parse out whether “clothes” includes protective equipment; they concluded that time spent donning, doffing and cleaning protective equipment (in this case, in the meat-packing industry) was compensable — because it’s not just “clothes.”
The “plain meaning” of that term refers to apparel, whereas protective equipment such as rubber gloves and boots, shin and arm guards, wrist wraps, polar sleeves and mesh aprons are not simply “clothes” and are worn over said apparel.
WHD reaffirmed this opinion twice over the next four years, then reversed course in 2002.
Since then, courts have been split on whether “protective equipment” or in some cases, “protective clothing” count as the “clothes” changed for which workers cannot be compensated.
The U.S. Supreme Court ruled in IBP v. Alvarez, 546 U.S. 21 (2005), that travel time from a locker room to a worksite was eligible for pay. Affirmed on other grounds, the time needed to put on and take off protective equipment was also eligible for pay.
However, SCOTUS later overturned both of these judgments in Sandifer v. United States Steel Corp., 571 US 220 (2014). In that opinion, the high court opined that changing into required safety gear constitutes “changing clothes” under the FLSA.
What does this mean for HR?
The Hershey case and the controversial history of don-doff precedents bring with them a potential check-up for HR professionals: Are the principal activities of each job defined? Is there a centralized place where each employee can find this information?
For example, courts maintained in cases involving Sara Lee and Butterball that clothes-changing isn’t a principal activity. In the Hershey suit, the plaintiff’s lawyers argued that “the donning and doffing of sanitary clothing and other protective equipment is integral and indispensable to the work performed by Defendant’s employees who are involved in the manufacturing, packaging, and handling of food.” It’s the Hershey factory workers’ first principal activity of the workday, the lawyer maintained.
In turn, courts have debated whether post-changing transit is compensable.
Time will tell which set of opinion letters influence the Hershey decision, but HR can stay equipped by looking to the Labor Department’s fact sheet on the fair labor standards legislation. The DOL defines terms like “employ,” “workday” and “principal activities,” and offers best practices therein including waiting time, on-call time, rest and meal periods, training and working time and some sleeping times.
