Should employees be paid for the time it takes them at the start and end of their shifts to put on and take off the safety gear required for their work on the production line, such as protective gloves, safety glasses, and the like? Those activities are commonly called donning and doffing.

The U.S. Court of Appeals for the 4th Circuit has ruled that workers at a Maryland poultry-processing plant didn’t need to be paid for the time it took them to don and doff their gear, terming the whole operation “changing clothes.” The case was Sepulveda v. Allen Family Foods (12/29/09). But the plaintiffs in that case asked the Supreme Court to review the decision, arguing that it contradicted earlier rulings. Particularly, the Supreme Court itself had ruled in two 2005 cases, which were combined, that workers should be paid for time spent donning and doffing protective gear and walking between the dressing area and the production lines (IBP v. Alvarez and Yum v. Barber Foods). Justices reasoned that the gear was donned for the benefit of the employer. Waiting in line to be given the gear was ruled as not compensable, however.

One of the attorneys arguing Sepulveda before the court asserted that the IBP case involved a beef-processing plant, not a poultry-processing plant. And, the Department of Labor in June 2010 issued an Administrator’s Interpretation letter saying that the meat packing and poultry industries use different protective gear. Furthermore, it said that the protective gear worn in meat packing cannot be termed “clothes,” but that the gear worn for poultry-processing is much lighter.

To make things more complicated, however, the Yum case, which was decided at the same time as IBP, involved a poultry-processing plant. And, to complicate things still further, the 4th Circuit also relied significantly in Sepulveda on the fact that the workers’ union had bargained with management for many years that they would not be paid for donning and doffing, which was part of the collective bargaining agreement.

Can employees bargain away their FLSA rights? They can if those rights are unclear. And, the conflict between these rulings will not be resolved quickly, because the Supreme Court has refused to consider the Sepulveda case. Littler Mendelson attorney Steven Kaplan observes, “It’s possible that the court prefers that other circuits weigh in on the issue before accepting review, particularly in light of the Department of Labor’s recent Administrator’s Interpretation.”