whether to compensate employees for time spent changing uniforms

8/3/2019 Whether to Compensate Employees for Time Spent Changing Uniforms

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Whether to Compensate Employees ForTime Spent Changing UniformsDemi Sophocleous and Kevin A. Hickman

New York Law Journal

July 23, 2010

Demi Sophocleous

Kevin A. HickmanImage: New York Law Journal

Mentioning the name of Hooters Restaurant to most members of the general public calls to mind imagesof an eatery with waitresses dressed in an iconic uniform. But, should the act of putting on and taking offthat iconic uniform be an event for which the Hooters employee is compensated? This issue is at thecenter of a recently filed class action complaint in the Superior Court of California, wherein a group ofHooters servers are seeking recovery of wages representing payment for time spent getting into and outof uniform each day.

A particular subset of employment law litigation has focused on the issue of "portal-to-portal pay."Essentially, courts have been asked on a number of occasions to determine under what circumstances

an employee should be compensated by his employer for the acts of preparing to work by getting intouniform or putting on job-specific gear and then removing this uniform and gear at the end of a work day.

While courts have typically been willing to side with employees seeking compensation for donning anddoffing activities under limited circumstances, the suit in the Superior Court of California against theHooters chain of restaurants is attempting to broaden the scope of the types of professions, and the typesof activities, that would fall within the scope of such compensation. This article will examine the history ofportal-to-portal litigation, and will discuss the case against Hooters under the standards in place to date.


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Statutory Authority

The Portal-to-Portal Act is a specific provision governing the entitlement of an employee to portal-to-portalcompensation. Specifically, 29 USC 254 provides, in relevant part, that:

no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938,

as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer topay an employee minimum wages, or to pay an employee overtime compensation, for or on account ofany of the following activities of such employee engaged in on or after the date of the enactment of thisAct

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity oractivities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities

Essentially, under 254, preliminary and postliminary activities are not compensable, meaning that onlythose activities that can be said to be "principal activities" of an employee that nonetheless occur awayfrom the workplace would entitle an employee to portal-to-portal pay under the act. Not surprisingly, the

activities that are deemed to be "principal activities" have been hotly contested and are ever-changing, ascan be seen in the Galakhovacase against Hooters Restaurants.

History of Litigation

The U.S. Supreme Court has held that any activity that is "integral and indispensable" to a principalactivity of employment is itself a principal activity of employment for purposes of compensation under254. IBP Inc. v. Alvarez, 546 U.S. 21 (2005), Steiner v. Mitchell, 350 U.S. 247 (1956).

The IBPcase, supra, involved workers at a meat processing plant that were required, as a part of theirdaily activities, to wear certain protective gear during the performance of their duties, which they woulddon at a certain location prior to walking to their position at the plant. The Supreme Court held that the

employer was required to compensate the employees for the donning and doffing of the protective gearand the time spent walking to and from their position because these activities were "integral andindispensable" to the job of meat processing.

The Supreme Court also determined that the maintenance of knives and other cutting tools by butchers ina slaughterhouse was "integral and indispensable" to the butcher's trade, and the lower courts haverepeatedly held that the caring for tools of one's trade are compensable activities under the Portal-to-Portal Act. See, e.g. Steiner, 350 U.S. 247, Abel v. Morey Machinery Co., 10 F.R.D. 187 (D.C.N.Y.,1950), Abbott v. American Machine & Foundry Co., 9 F.R.D. 310 (D.C.N.Y., 1949).

On the other hand, the U.S. Court of Appeals for the Second Circuit has observed that the donning anddoffing of "general protective gear" is not sufficiently integral or indispensable so as to give rise tocompensation. Gorman v. Con. Edison Corp., 488 F.3d 586 (2d Cir. 2007). In the Gormancase,

employees at a nuclear energy plant sought to obtain compensation for activities such as passing throughsecurity checkpoints and donning helmets and steel-toed boots. The Second Circuit, in affirming thedenial of the employees' claims, held that these activities were merely "preliminary and postliminary"activities that were specifically excluded from compensation by the Portal-to-Portal Act. Id. Specificallywith respect to the protective gear, the court held that the items of protective gear required by theemployer were generic in nature and were analogous to simply changing clothes to go to work. As such,the Second Circuit declined to extend a classification of "integral and indispensable" to such activities.


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Needless to say, the plaintiffs seek to expand the scope of compensable activities under 254, and boththe plaintiffs' and defense bars would be well advised to closely monitor the outcome. In the event that theplaintiffs are successful, an entirely new area of this type of litigation will ensue. Conversely, should thedefendants successfully defeat the claim, future suits will be less likely because of the precedent set bythe Galakhovacase.

Demi Sophocleousis a partner in the New York office of Morrison Mahoney.Kevin A. Hickmanis anassociate with the firm in New York.

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