Donning, Doffing Decision Still Debated

A trade association and the U.S. Labor Department offered very different interpretations of the U.S. Supreme Court's 2005 decision in IBP, Inc. v. Alvarez when they commented on its application to FSIS inspectors.

The Food Safety and Inspection Service has issued a final rule stating that the regular work week for its inspections is five eight-hour days that includes donning and doffing time. There's no charge for the regular week, but if inspected establishments require more than eight hours of inspection service, they must request overtime inspection service as provided in 9 CFR 307.4(d)(3), 9 CFR 381.37(d)(3), and 9 CFR 590.126.

The inclusion of time spent donning and doffing protective equipment is the new part of the rule. Long an issue for some food industry employers, especially meatpacking operations and poultry processors, donning and doffing became a Fair Labor Standards Act issue in U.S. Labor Department wage and hour cases until it was apparently settled by the U.S. Supreme Court's 2005 decision in IBP, Inc. v. Alvarez, 546 U.S. 21, which said donning and doffing time is compensable.

Comments about the FSIS rule from DOL and a food industry trade association show that they see the decision differently, however. They gave different interpretations of "unique" and "non-unioque" gear and what the decision itself said.

"Unique" gear refers to items that are unique to the jobs at issue, such as cut-resistant gloves and chain link metal aprons in livestock slaughter establishments. "Non-unique" refers to generic items, such as hard hats, and hairnets, worn in all slaughter and processing establishments.

DOL said whether gear worn by employees is unique or non-unique is irrelevant to whether donning and doffing the gear is a principal, compensable activity. The trade organization argued that time associated with donning and doffing non-unique gear is noncompensable because it is de minimis as a matter of law. "The trade organization stated that in IBP, the Supreme Court did not hold that the donning and doffing of non-unique gear by on-line inspectors in poultry establishments is a compensable activity. The trade organization stated that the question of what constitutes integral and indispensable activity was not addressed by the Supreme Court in that case," the rule's text states. "The trade organization stated that IBP only addressed whether walking time associated with donning and doffing integral and indispensable gear is compensable. The trade organization stated that the proposed rule incorrectly assumed that gear for both poultry and livestock inspection program personnel is integral and indispensable but that court precedent has not established that to be the case. The trade organization stated that, to the contrary, before IBP reached the Supreme Court, the 9th Circuit expressly concluded in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), that donning and doffing time is compensable except for time associated with the donning and doffing of generic protective gear, such as the hardhats and safety goggles worn in the poultry industry, because the time it takes to don and doff such generic gear is de minimis as a matter of law.

FSIS elected to accept the Labor Department's stance.

FSIS requires its inspection employees to wear this specific gear: hard hats, hearing protection, cut-resistant and cover gloves, and slaughter equipment for post-mortem inspection procedures -- knives, hook, steel, and scabbard -- according to the rule.

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