The U.S. Supreme Court recently addressed when employees must be paid for putting on (“donning”) safety and other protective gear at the beginning of the work day, as well as when they must be paid for removing (or “doffing”) the equipment at the end of the day. This issue is important to manufacturers whose employees must spend a portion of each day walking between the “donning” or “doffing” station and the production line. This time is generally compensable, the Supreme Court ruled in IBP, Inc. v. Alvarez, if putting on and removing protective gear is an “integral part” of the employee’s job duties (e.g., required for safe performance of the job). Of course, whether it is “integral” to the job is a highly factual inquiry turning on the nature of the job, the employer’s business, and the gear itself. “Ordinary” changing of work clothes or removing hairnets, safety glasses, or boots will typically not be “integral.” What about time spent waiting to put on protective gear at the beginning of the day? The Court said “no,” as that is “two steps removed” from actual production or activities “integral” to the principal job duties.

In three recent opinion letters, the U.S. Department of Labor (DOL) has explained whether certain employment practices — particularly pay practices — jeopardize the FLSA “salary basis” requirement for white collar exemptions.

“Make Up” Time. The DOL confirmed that exempt employees may be required to “make up” personal absences of less than a full day without violating the salary basis test. As long as the employer does not improperly dock the salary of an exempt employee who fails to make up the absence, disciplining the employee by some other means for failing to make up the time does not threaten the exemption. The DOL comfortingly stated that requiring exempt employees to work established hours is not inconsistent with the salary basis requirement.

“Snow Days.” Concerning weather-related absences, an employer does not violate the salary basis test by reducing an employee’s salary for a full day absence as long as the business remained opened. According to the DOL, “when an employer remains open for business during a weather emergency, and an employee chooses not to report to work for the day due to the adverse weather conditions and/or attendant transportation difficulties, the employee’s absence in that situation is considered to be an absence for personal reasons.… Any full-day deduction from the salary of an exempt employee for such reason will not violate the salary basis rule or otherwise affect the employee’s exempt status.”

Reimbursement For Loss. In a surprising development, the DOL stated that requiring exempt employees to reimburse the employer for “the loss, damage, or destruction of the employer’s funds or property due to the employee’s failure to properly carry out their managerial duties” violates the salary basis test. Using a questionable analysis, the DOL said salaries were not “guaranteed” or paid “free and clear” as required by the regulation if deductions for damage, loss, or destruction occur (because salary reductions due to “quality” of work are not allowed). Even more curious is the DOL’s conclusion that written agreements requiring exempt employees to separately reimburse the company (i.e., not through a payroll deduction) for such damage would also violate the salary basis rule.

Sonja Lengnick

Back to the Top