One of the costliest mistakes an employer can make is failing to pay compensable time in accordance with applicable local, state, and federal laws. Arizona law follows federal law under the Fair Labor Standards Act (FLSA) regarding compensable time such as defining the workday, the de minimis doctrine, pre- and post-shift activities (e.g., donning and doffing, security checks), waiting and on-call time. However, in most instances California law is more protective than the FLSA when it comes to compensable time. Both states require nonexempt employees to be paid at least minimum wage for compensable time.
The time spent by employees putting on and taking off clothing, safety equipment and work-related gear is referred to as “donning and doffing.” The compensability of donning and doffing time under the FLSA depends on the specific circumstances. Courts consider the nature of the employee’s duties to be a question of fact whereas the application of the FLSA to those facts is a question of law. Federal law typically applies an “integral and indispensable test” to the compensability of donning and doffing time. This test applies multiple factors to the circumstances to determine if the donning and doffing activities are an integral and indispensable part of the employees’ principal duties.
Given the complexity and multi-factor nature of the “integral and indispensable test,” employers should consult counsel before making decisions concerning payment of donning/doffing and other preliminary or postliminary activities. Members with questions concerning donning/doffing and other preliminary or postliminary activities should contact Western Growers.
Tips and Best Practices
- Review timekeeping and pay policies looking specifically at any new pre-and post-shift or meal and rest break activities.
- Time existing pre-and post-shift activities to determine order, amount of time spent, and whether each is compensable.
- Determine when in the process of donning and doffing an employee will clock in and out. This should lead naturally to a determination of the most effective means of clocking in and out (e.g., stationary time clock, card reader, or electronically via computer or application).