Employers have seen a steady increase in wage- and-hour litigation from employees seeking to recover overtime pay for time spent in “donning and doffing” (putting on and taking off) work- related clothing or equipment before or after performing their work. While the law remains unsettled, the U.S. Court of Appeals in Chicago has found employees’ donning and doffing time was not compensable work time under the federal Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL), thus delivering relief for employers. Mitchell v. JCG Ind., Inc., No. 13-2115 (7th Cir., Mar. 18, 2014).

The plaintiffs, unionized poultry processing work- ers, alleged they had not been paid overtime to which they were entitled under the FLSA and the IMWL. They claimed they were required to don and doff “a sterilized jacket, plastic apron, cut-resistant gloves, plastic sleeves, earplugs, and a hairnet,” as well as wash their hands, at the beginning and end of their shifts and lunch breaks.

The district court granted summary judgment in favor of the employer. In a 2-1 decision, the Seventh Circuit affirmed, ruling the plaintiffs were not entitled to additional compensation for their donning and doffing activities. Judge Richard Posner wrote the majority opinion.

The Court pointed out that the FLSA (Section 203(o)) exempts from the definition of compensable work time any time spent “changing clothes or washing” if those activities are excluded by “the express terms of or by custom or practice under a bona fide collective bargaining agreement.” The Court held that donning and doffing before and after the workers’ lunch break was covered by Section 203(o), as is pre-shift and post-shift donning and doffing.

On whether the plaintiffs could recover for time spent donning and doffing protective equipment, which does not qualify as “changing clothes” under Section 203(o), the Court held the plaintiffs could not recover because the time spent was de minimis, that is, minimal and inconsequential. Under the Seventh Circuit’s ruling, if the time spent donning and doffing protective equipment is “minimal,” then all time spent donning and doffing items falls within Section 203(o)’s exemption from compensable time, not just the time spent changing “clothes” or washing.

The Court next held that, even apart from the operation of Section 203(o), the claimed donning and doffing time was not compensable under the de minimis doctrine under both federal and Illinois law.

This latter holding is helpful for employers general- ly, as it is not limited to employers with unionized workforces. Affirming its decision in another case, the Court stated, “It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.” See Sandifer v. U.S. Steel Corp., 678 F.2d 590, 593 (7th Cir. 2012), aff’d, 134 S.Ct. 870 (2014). Further, in applying the Illinois law’s definition of compensable time, the Court found that “the de minimis rule is alive and well in Illinois’s law of employee compensation.”

Judge Diane Wood dissented from the majority’s decision. Among other things, Judge Wood criticized the majority for ignoring what she considered to be a factual dispute about how long the donning and doffing at issue actually took.

Employers should seek appropriate legal advice to determine whether donning and doffing time is compensable for their workforce.