Heightened food safety regulations requiring protective garb and sanitation procedures have stimulated a growing number of “off-the-clock” wage claims in agriculture. Where food processing and harvesting employees once started to work with little or no preparation, food safety concerns now require more time “gearing” up for work. Many processors and harvesters have not counted such time as hours worked. However, a number of enforcement agencies and plaintiffs’ attorneys are bringing class action claims alleging that workers are not being paid for all of their time.
These claims for tasks performed before and after work “production” begins and ends are commonly known as “donning and doffing” cases: employees “don” or put on specialized gear before work and “doff” or remove the gear at the end of a work period or the end of the day. In addition to this activity, there may be other tasks, hand washing, exercise activity or safety meetings that are not being counted as “hours worked.”
If such time is deemed compensable, the ramifications for the employer can be huge. In addition to actual wages owed, there are a panoply of penalties which apply to unpaid wages that can easily apply a multiplier of 100 to the actual unpaid wages. First, there are liquidated damages of an amount equal to the unpaid wages under federal law. Second, since the paystubs do not reflect the correct hours and pay, a penalty of Labor Code (“LC”) 226 provides a penalty of $100 per pay period up to $4,000 per employee. Under LC 202 and 203, unpaid wages means laid off or quitting employees are entitled to waiting time penalties of up to 30 days’ pay. Under the LC 2699 (Private Attorney General Act) employees can seek $200 per employee per pay period for each wage payment violation.
To add insult to injury, most of these Labor Code provisions allow the plaintiff’s attorney to collect fees and costs from the employer.
The De Minimis defense.
Under federal standards, preliminary and postliminary acts which are not part of the “principal activities” of the employee are not compensable. Lately the definition of principal activities has been expanding to include activity which is an integral part of the “principal activity.” Activities which are closely related and indispensable to the performance of a job can be compensable. On the other hand, activities which are mostly a convenience to the employee can be considered non-compensable preliminary activities. (29 CFR section 790.8)
The federal and state courts have applied a three stage test to whether preliminary activity is compensable: Is the activity “work’?; Is the activity an “integral and indispensable” duty?; Is the activity de minimis? By “work” the courts distinguish between an activity which is controlled or required by the employer or primarily for the benefit of the employee.
When an employer requires certain safety or sanitation gear be worn at all times, putting on such gear can be considered “work.” However, if the gear can be donned outside of the control of the employer, it does not meet the second prong of the “work” test. Many cases involving police officers have turned on the fact that they are able to put on their uniforms, gun belts and vests at home and not under the control of the employer.
It is also pretty clear that putting on sanitation gear and washing hands are activities that are “integral and indispensable” to the principal activities of harvesting and packaging food products that meet food safety requirements. In most cases, this activity is under the direct control of the employer. Employees cannot bring sanitized smocks, aprons, gloves or hair nets from home.
The cases have held that putting on “non-unique” protective gear such as hard-hats or rain gear is not compensable. Obviously such gear could be donned away from the employer’s premises, thus outside the employer’s control.
A third criterion will allow an employer to avoid paying for pre- and post- work activities if the time involved is de minimis. This does not merely mean a very brief period of time. Three factors bear on whether the time spent on a particular “indispensable” activity is de minimis and not compensable:
1. The administrative difficulty of recording the time.
2. The size of the aggregate claim.
3. The frequency of the activity.
An off-the-clock activity which occurs once or twice a week on a non-regular basis would be seen as administratively difficult to track. However, the courts have considered even a few minutes a day significant amount for low wage employees.
The regularity of donning and doffing sanitation gear each day will likely preclude a de minimis argument. This is particularly true where the time spent is from three to five minutes and happens every day. The time spent becomes significant if there are other required pre-work activities such as hand washing or cleaning equipment or knives.
Other Compensable Pre-work Activities
Pre-work safety meetings, although infrequent, have generally been deemed to be compensable hours worked, mostly because the employees are subject to the control of the employer.
Many employers have warm-up exercises for a few minutes each day. While arguably for the benefit of the employee, not the employer, the employees are generally required to participate in such exercises and are under the employer’s control. Such time should be recorded and noted separately on the employees’ paystubs in order to establish that the time was recorded and compensated.
Adopting Compliant Timekeeping Procedures
In a plant setting with electronic timekeeping systems, employees donning substantial sanitation gear should do so after they record their start time. The same process should be used for meal periods. Unrecorded rest periods should be extended beyond the minimum of 10 minutes if employees remove their gear during breaks.
In field operations, requiring gloves, aprons, hair nets and hand washing, employers need to record the donning and doffing time. Rather than adjust the time to show up, extra time should be noted by the time keeper. Thus, if work is to begin at 7:00, the “clock” starts at 6:55 leaving five minutes for the crew to don their specialized sanitation gear.
Most “hours worked” cases are brought as class or representative actions. The damages and costs can skyrocket when there is a claim for an entire crew going back several years based upon uniform, unpaid pre-work activities for the benefit of the employer. Employers should review all preliminary and postliminary activities to ensure that they are not exposed to a large wage and penalty lawsuit.
**DISCLAIMER: The views expressed are not necessarily the views of Western Growers, its directors, officers, staff or members.
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