Q: WORKING in a processing company, I am required to put on a special uniform and undergo sanitary inspections before I can start work. I have to come to work about 15 to 20 minutes early to do this to be able to clock in on time. When my shift is done, I clock out and then clean my equipment which requires me to stay an extra 20 minutes. Should my employer pay me additional wages for the time doing these tasks before and after my shift?
A: Yes, you should be paid for the extra hours you spent putting uniforms and undergoing inspection although these are done before your scheduled hours. Such extra hours are termed “off the clock” hours because they occur outside an employee’s regular work hours or shift. You are also entitled to the overtime rate of 1½ times your regular rate for any work in excess of 8 hours per day.
Employees should be paid for all hours worked. Under California law, “hours worked” is that time during which an employee is subject to the control of an employer. Employees may be required to do preliminary work before they actually start their workday and perform their main job. They may also be asked to perform other tasks after doing their main job, known as postliminary work. These would include cleaning or maintaining tools or equipment, removing protective gear, sanitizing or disinfecting, or security inspections after the end of their shift.
Often, the employees perform these preparatory or concluding activities for the employer’s benefit. These tasks may be an integral part of the employee’s principal business, or they are required by law or the company rules to perform them. If so, then the time employees spend performing such tasks is compensable.
For example, knife sharpening activities of knifemen are considered an integral part of butchering activities for which they are employed. Thus, such activities are compensable. Similarly, time spent putting on and removing required protective gear and walking from the locker rooms to the production floor of a meat processing facility ordinarily is compensable.
Twenty minutes spent putting on uniforms may not sound like a lot. However, if it occurs regularly over several years, the additional wages owed to the employee may be significant. Moreover, if it happens to several employees, then the employer has saved on labor costs, by passing the costs onto its workers. This is not fair. It is also illegal.
Recently, workers of California-based Dole Food Company filed a class action lawsuit against Dole, claiming back wages. Dole’s food safety policies mandate workers to wear lab coats, gloves, and hairnets. They also have to sanitize their hands and shoes before going to their workstations. The workers claimed that Dole did not pay them for the substantial time they had to spend in putting on the mandatory protective and sanitary clothing.
Dole workers also claim back wages for missed breaks because when they take breaks, they have to remove and then put back on the protective and sanitary clothing which cut into their lunch and rest break schedules. It appears that the workers are not paid for their shortened breaks.
Dole is not the only employer which has run afoul of these types of off-the-clock work. Last year, Tyson Foods, settled with its workers for $32 million. Its workers accused Tyson of failing to compensate workers for the time they spent putting on and removing their safety gear, which was necessary for them to wear to keep the food safe while processing at the plant. The settlement has been called the largest settlement against a poultry company in the United States.
But what if, instead of putting or removing clothing, the worker is instead asked to wait, after having clocked out, for security inspections? And what if the workers spend several minutes waiting for the supervisor to check their bags before they can leave? Should the employer pay them? After being sued for these reasons, Best Buy did.
The message in these lawsuits is obvious. Employers cannot simply take shortcuts to cutting labor costs. Such maneuvers may end up becoming a costlier venture.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.