Employees Entitled to Overtime Pay for Time Spent Putting on Uniforms & Protective Gear Before & After Scheduled Shift

Employees may have substantial claims for unpaid overtime when employees are not paid for time spent at the place of employment to prepare for and end the work day (known as “donning and doffing”) when the employees already work more than 40 hours per week.

In Smiley v. E.I. DuPont De Nemours (3rd Cir. October 7, 2016) (no. 14-4583), the Plaintiff employees filed a class action under the Fair Labor Standards Act (FLSA) and the Pennsylvania Wage Payment and Collection Law (WPCL), seeking unpaid overtime compensation for time the employees spent donning and doffing their uniforms and protective gear and performing “shift relief” before and after their regularly scheduled shifts. The case includes two types of employees: employees who were directly employed by DuPont and employees who were employed by a contractor to DuPont, Adecco, who were placed at DuPont as “contract” employees. The employees claimed that the employer violated the FLSA and WPCL by requiring the employees to work before and after their shifts without paying them overtime compensation (i.e., time and one-half pay) for time spent donning and doffing their uniforms and protective gear and performing shift relief work.

In Smiley, the employees worked twelve-hour shifts at DuPont’s manufacturing plant.The employees had to be on-site before and after their shifts to “don and doff” uniforms and protective gear and participate in “shift relief”, which involved employees from the outgoing shift sharing information about the status of work with incoming shift employees. The time spent donning, doffing, and providing shift relief varied, but ranged from 30-60 minutes per day. The employees were entitled to one thirty-minute paid lunch break per shift as well as two non-consecutive thirty minute breaks. The paid break time always exceeded the amount of time the employees spent donning and doffing and providing shift relief. DuPont treated the compensation for meal breaks similarly to other types of compensation given to employees and it included the compensation given for paid meal breaks when it calculated the employees regular rate of under the FLSA. The employees’ meal break time was included on the employees’ paystubs as part of their total hours worked each week. Dupont claimed that an employer could apply the non-work break time to offset the required overtime and the employees were not owed any additional compensation because the amount of paid non-work time exceeded unpaid work time.

The FLSA requires that employers pay employees for all hours worked and employers must pay an employee who works longer than forty hours per week overtime compensation at a rate not less than one and one-half times the employee’s regular rate. The term “hours worked” includes time when an employee is required to be on duty, but it is not limited to “active productive labor” and may include circumstances that are not productive work time. The FLSA explicitly states the only circumstances when an employer may use certain compensation already given to an employee as a credit against the employer’s overtime liability owed to that employee. These circumstances are extra compensation provided by a premium rate paid for certain hours worked by the employee in any day of workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek; extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek; and extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement.

In Smiley, the Third Circuit held that nothing in the FLSA authorizes the type of offsetting DuPont advanced where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability, where the time sought to be included was meal break or rest break time. Instead, the Third Circuit concluded that there is no authority for the proposition that compensation already paid for hours of work can be used as an offset and thereby be counted a second time as statutorily required compensation for other hours of work. Consequently, the Third Circuit reversed the District Court’s decision and found that employees are entitled to be paid for time spent donning and doffing their uniforms and protective gear and performing the “shift relief” work before and after their regularly scheduled shifts. Now that the case has been remanded to the trial court, assuming the employees are successful, the addition of the uncompensated time to the time the employees already worked will likely lead to substantial unpaid overtime compensation, FLSA liquidated damages (an additional amount which will result in double the actual “backpay” damages) plus an award of the employees’ attorneys’ fees and costs.

Abramson Employment Law represents employees who have FLSA claims for unpaid wages and overtime pay. For more information see http://www.job-discrimination.com/lawyer-attorney-1126494.html

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Filed under Employment Law, Fair Labor Standards Act, Pennsylvania Wage Payment and Collection Law, Unpaid Overtime FLSA, Unpaid Wages

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