Jottings By An Employer's Lawyer

Tuesday, March 16, 2004

Doffing & Donning, Walking & Waiting - A Hit At the Chicken Plant

While it almost sounds like a '50s rock and roll tune, it really is central language from a modern day appellate court dealing with the Portal to Portal Act, a substantive amendment to the Fair Labor Standards Act. In Tum v. Barber Foods, Inc. (1st Cir. 1/10/04) [pdf], the 1st Circuit after granting plaintiffs' motion to reconsider and the supporting amicus brief filed by the Secretary of Labor, still affirmed a lower court judgment in favor of the employer.

This case deals with taking on and off protective equipment required by the employer or by governmental standard. Here while finding the "doffing and donning" was integral to the work, the jury also found that the time spent (which it found in minutes and seconds) was also de minimis. The second part was the court's rejection of the plaintiffs' and Secretary's argument that the time spent waiting for the issuance of equipment and the walking after the equipment was issued, or required equpment donned should also be counted. The Court, including a concurring opinion laying out the history of the Portal to Portal Act, said no. Although these cases don't arise often, in the industries where they do the liability can be substantial. This is both a solid win for the employer and a good place to gain an overview on a complex niche of the wage and hour law.

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