Should you be paid to don this costume?
In late July a Disney employee filed a lawsuit alleging that the company was violating the FLSA by not paying employees for the time it took them to put on their uniforms. This is an area that falls under the “doffing and donning” rules in the FLSA that have been litigated numerous times. The Supreme Court has even had to rule on the definition of “clothing”, as I wrote about here.
Integral and indispensable
In working through a number of cases the courts have decided that getting dressed into uniforms and protective gear is covered if “… the FLSA provides that pre-shift donning and post-shift doffing may be compensable if both “integral and indispensable” to the “principal” duties of employment.” According to an article by Badoux and Lehet:
The DOL and courts have long adhered to the “continuous workday” rule. Under this rule, the compensable workday begins the moment an employee engages in either a principal duty (i.e., a task he or she is employed to perform) or an activity integral and indispensable to a principal duty. The compensable workday then continues until the final principal duty or integral and indispensable activity of the day. Consequently, activities engaged in during the interim remain compensable if pursued necessarily and primarily for the employer’s benefit. If they are not, and instead the employee is relieved from duty and free to use the time for his or her own purpose, the compensable workday ends and does not begin until the next principal duty or integral and indispensable activity.
Protective equipment such as helmets, safety glasses, chemical suits, respirators, dust suits and such are generally necessary and integral to the performance of various jobs. They are “donned” in the work place. Employees would not come to work or ride the bus wearing such equipment. The time it takes to put this equipment on and take it off at the end of the shift would be compensable time. As an example, suppose you run a 7 am to 3 pm work shift. You require them to be at their workstation promptly at 7 am. But before they can report they have to put on a protective suit and helmet. This activity requires 15 minutes. Thus they would clock in, put their equipment on, and then report to their workstation. At the end of the day, they remove the clothing and clock out. Each day thus becomes 8.5 hours. At the end of a five day work week they have now worked 42.5 hours. This is 40 hours straight time and 2.5 hours overtime.
Uniforms are a different issue that has been litigated often. Uniforms that can be donned at home, or at work, at the employees’ discretion are not considered integral and necessary to the performance of the work. The donning and doffing of these items would not be compensable time. However, if where someone puts a uniform on is not left to the discretion of the employee, then the time may become compensable.
Disney
It seems to me that putting on a costume such as Mickey Mouse or another Disney character would be covered by the current rules. No one is getting dressed like that at home and coming to work in such a costume. Dressing to perform the job of cashier might be another story. The FLSA does not require employers pay for putting on each and every uniform. The standard has to comply with the integral and indispensable. In this case dressing as Donald Duck should be compensated. We will have to wait and see how this case turns out.
Photo credit: MS Word clip art
