Some clothes changes at work may be legally compensable

Q&A with Josh Solberg

published in The Oklahoman | March 5, 2014

For some jobs to be performed safely and effectively, the changing in to and out of clothing and personal protective equipment at the start and end of each workday is a required task. But under what circumstances is an employer required to compensate employees for the time spent on such donning and doffing activities?

According to McAfee & Taft labor and employment lawyer Josh Solberg, who was interviewed on the topic for The Oklahoman, there is no federal standard. “Generally, donning and doffing clothing and personal protective equipment (sometimes referred to simply as PPE) is compensable if it is ‘integral and indispensable’ to a ‘principal activity.’ If it is merely ‘preliminary to or postliminary to (the) principal activity,’ such time is not compensable. That is an overly complicated way of saying, ‘it depends.’”

Given the lack of uniform federal law and the fact that employers can face steep penalties for not paying employees for activities later determined to be compensable, Solberg urges employers to take a close look at the issue. He noted that the Fair Labor Standards Act allows employees to seek wages for previously uncompensated donning and doffing time for up to three years. In addition, successful plaintiffs can be awarded liquidated damages in certain circumstances as well as attorneys’ fees and costs.

In the case of unionized employees, Solberg said the compensability of donning and doffing activities is typically subject to collective bargaining.