Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Roxana Verano, Esq. If you have questions of your own or require further information regarding wage and hour laws, feel free to contact Landegger Baron Law Group (see contact information to the left).
What is donning and doffing? What is an example of a donning and doffing case?
The term "donning and doffing" is used to refer to the practice of putting on (donning) and taking off (doffing) protective gear, clothing, and uniforms. There are certain circumstances where employers are legally required to pay their employees for time spent donning and doffing. Generally, FLSA law stipulates that time spent donning and doffing specialized protective gear is compensable time. However, courts may have different opinions about whether time spent donning and doffing protective gear that is not unique or specialized must be compensated.
Some courts have held that the time spent by an employee donning protective gear that can be considered an "article of clothing" such as a flame retardant jacket, a pair of pants, hood, a hardhat, wristlets, work gloves is not compensable. On the other hand, safety glasses, earplugs, and a respirator are not commonly regarded as articles of clothing; however, the time spent donning these items is so minimal that it is also not compensatory time.
Other cases have held that a meat processor must be compensated for the time he spent putting on protective gear and the time he spent walking from the locker room to the production area. Another court held that a Silicon wafer manufacturer must compensate employees for time spent changing into and out of required uniforms and gowns.
The courts will ask whether the donning and doffing activity is an "integral part and indispensable" to the employee's principal activity. If the answer is yes and it takes more than minimal time to don and doff, the time will likely be compensable.
If my employee works for more than 5 hours (say 5 hours and 15 minutes, then takes lunch), am I liable for the 1 hour meal premium/penalty? My employees manage their job and time.
Depends in what state the employer is located. Under federal law, there is no requirement that an employee take a meal period before the end of the fifth hour of work. However, in California, there is such a requirement. An employee may not work more than 5 hours without taking an uninterrupted 30 minute meal period. If the employee takes the meal period 5 hours and 15 minutes later, then the employer should pay the 1 hour penalty unless the reason for taking the late meal period was voluntary on the part of the employee. The law requires that the employer permit and authorize a timely 30 minute meal period. Even if the employee manages his/her own time, if the employee were to say that he/she was not allowed to take a timely meal period because of the amount of work he/she had, then the late period would not be considered voluntary. In other words, is the work itself "preventing" the employee from taking a meal period? I would have to know more about the nature of the work to provide a better answer.
Are rest breaks required for any length of time worked?
Not under federal law. There is no requirement that rest periods be provided. State may have laws regulating rest periods. In California, an employee must be allowed to take a 10 minute rest period for every 4 hours worked or "major fraction thereof" (2 hours or more). If the employee works less than 3.5 hours, he/she is not entitled to a 10 minute rest period.
Is a non-paid meal break mandatory for an employee working more than 5 hours for a non-union shop?
Not under federal law, but it might be required under state law. In California non-union shops, private employers are required to provide an uninterrupted 30 minute meal period before the end of the fifth hour of work, and two 30 minute meal periods if the employee works 10 or more hours.