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Construction Workers May Be Owed Time Spent Donning And Doffing Protective Clothing

Yingtao Ho
Written by: Yingtao Ho

In the recent decision of UFCW Local 1473 v. Hormel Foods, 2016 WI 13 ¶42, the Wisconsin Supreme Court held that putting on and taking off work clothes and equipment (called donning and doffing) is indispensable to the production of a sanitary meat product by food processing employees.  The employees’ time spent putting on and taking off work clothes and equipment must count as hours worked.  Hormel Foods is governing authority for how donning and doffing time must be compensated under Wisconsin law, but not under the Federal Fair Labor Standards Act.

workers pouring cement in road construction on brazil

By the same reasoning in Hormel Foods, time spent by construction workers putting on, and taking off clothing and equipment that are indispensable to working safely must count as hours worked.  Examples of such clothing and equipment would include safety harnesses, eye and ear protection, and fire/flame resistant clothing.  In order to have time spent putting on and taking off protective equipment count as hours worked, the employee must put on, and take off protective equipment on the jobsite.  Time spent putting on and taking off protective clothing and equipment is more likely to count as hours worked, if the protective clothing and equipment are required by OSHA or other government regulations, or by the employer.

The Court further held that because the employees’ time spent putting on and taking off protective clothing and equipment must count as hours worked, the employees’ time spent walking between the location where they put on and take off protective clothing and equipment and their work station also must count as hours worked.  The Court therefore applied DWD §272.12(2)(g)5, which requires employers to pay employees for travel between work locations, to the employees’ walk between the location where they put on and take off protective clothing and equipment, and their work stations.  The Court further held that the employees’ time spent washing hands must also count as hours worked, presumably because washing hands is also indispensable to the production of a sanitary meat product.

In the construction industry, employees are typically required to be at their work station at the start time, and to be still at their work station at quitting time.  The jobsite trailer or other area where the employees are putting on and taking off protective clothing and equipment may be several minutes walk away from the employees’ work station.  In Hormel, the Court held that additional pay is owed to the Plaintiffs, because their combined time spent putting on and taking off protective clothing and equipment, and walking to and from their work stations was 5.7 minutes per day.  Following this logic, an employee who spends 30 seconds each to put on and take off a welding helmet and gloves, and then spend 2-3 minutes to walk from the job trailer to his work station, is entitled to have all such time count as hours worked.

If you believe you may be owed pay for donning and doff protective clothing and equipment, contact the Previant Law Firm S.C. at 414-271-4500.

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