Donning and Doffing, Revisited
Posted on 11-Jan-10 by The Timekeeper
We’ve covered “donning and doffing” before — and it remains a complex and confusing issue.
Unfortunately, it’s probably going to take a Supreme Court ruling to clear up the apparent inconsistencies in the lower court rulings. In the meantime, we’ll likely see a lot more lawsuits like the one recently filed against Osceola Foods in Osceola, Iowa, and plant general manager Steven Weers.
Could be big bucks
A class-action suit on behalf of the hourly employees at the plant alleges they were required to spend approximately 25 minutes each day off the clock putting their protective gear at the beginning of their shift and removing it at the end.
Wow. At 25 minutes a day, you’re talking about just over two hours a week. At pay rates of $11.65 to $13.45 an hour, and 677 employees, going back for two years as allowed under the Fair Labor Standards Act (FLSA)… hmmm, assuming not all of those 677 were hourly and subject to donning and doffing, let’s say 625 employees affected… doing a bit of quick math… if they’re found liable, the company could be on the hook for somewhere between $1.5 million and $1.9 million in back wages alone.
And the lawyers say they’re going to ask for two times the damages plus attorney fees. Yowza! Plus, they’ve won similar class-action suits in Iowa before, so Osceola Foods probably should be concerned.
More to think about than just donning and doffing
Even if you don’t face this specific issue, what should give almost any employer the heebie-jeebies is this: J. Barton Goplerud of Hudson, Mallaney, Shindler and Anderson law firm, who is the plaintiffs’ attorney, reportedly said while this particular lawsuit focuses on the donning-and-doffing issue, the lawyers “…are investigating whether there were more unpaid hours.”
In other words, once they’ve gotten their foot in the door with one issue, they’re going to be actively looking for others.
Meaning that every little corner cut, every little infraction, every “gentleman’s agreement” (even one that makes your employees happy) that technically violates the FLSA, can get found out, dredged up in a court of law and end up costing you a bunch of money. Too many of those, and the lawyers can (and will) try to prove a pattern of violations, demonstrating “willfulness,” and thereby allowing them to go back three years instead of the standard two for calculating back wages.
Now, as InjuryBoard. com points out, some employers are taking advantage of the economy to wring more work for less pay out of their employees. Some of those wage and hour concessions may in fact violate the FLSA, perhaps inadvertently (or not). And some employees may be laying low on reporting violations these days because in this economy they’re just glad to have a job, and are afraid of retaliation.
But the economy will improve and employees will begin speaking out. The current climate in Washington is definitely focused on enforcement more so than it has been in the recent past. Many of the states are also stepping up their enforcement actions, and plaintiffs’ lawyers are actively recruiting clients for lucrative wage and hour lawsuits.
Just one more incentive (as if you needed more) to make sure your wage and hour house is in order.
Related Posts
- Making the Case (Again) for Time and Attendance Tracking
- Total Surrender — For the Win!
- Griping versus “Filing”
- I Did Not Know That!
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