Pay is Due for Time to Change Gear or Clothing

The Law: Pay due for Time to Change Gear / Clothing at Work

According to a new ruling of the U.S. Supreme Court in two consolidated cases, federal law requires employers to pay employees for the time they spend changing in and out of specialized protective clothing or safety gear and the time spent walking between their work locations and the place where they change. In addition, time spent waiting to remove the specialized protective clothing or gear must be paid as well.

In one case, employees also argued they should receive pay for the time they spend waiting to put on the first item of safety gear. The Court rejected that request as being no different than the time between entering the employer's premises and reaching the work location, which is unpaid time under the federal Portal-to-Portal Act. IBP, Inc. v. Alvarez, 2005 U.S. Lexis 8373, (2005).

What You Can Do

If you wear special protective clothing or gear, and you use the employer's premises to change into this gear, you are likely entitled to be paid for "work performed". In effect, you should treat the act of assembling and putting on the clothing and/or gear as "work" for which pay is due.

Take this information to your supervisor and your Human Resources officer. It is best to put the information in writing, and to keep a copy for your records. State that you believe the current practice to be illegal, and ask that the matter be investigated. Insist on being given a report of the conclusions reached. Allow a reasonable time for the investigation, not to exceed a few weeks. Remember that the correction is not just of the future pay, but includes back pay as well. In California, wages are recoverable two years in arrears, but if overtime, then 3 years.

If the practice has been going on for years, and if numerous employees are involved, see an attorney to file a class action or a "representative action" for "unfair business practices" under the Business and Professions Code.

If you are harassed, demoted, or fired for bringing this apparent illegality to the attention of the employer, you are protected by anti-retaliation statutes and case law. You can recover emotional and punitive damages as well as lost income. Document any instances of harassment you experience. Keep your personal log of harassment "off-site". However, the law requires that you report the harassment, and give the employer the reasonable time and opportunity to investigate and correct it. If the employer fails, its liable in full damages for the harassment of its supervisor.

Conclusion

Employers are of course justified generally in cutting costs to increase profits. That motive is checked by the law that workers will be paid for "time worked". This case demonstrates that an employer cannot increase its profits by denying its employees earned compensation for time spent doing a task beyond just traveling to the work site from home, or from home to the work site ["portal to portal"].

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Disclaimer: This site is not legal advice. View it as a general resource and public service.

The Employment Law Office of Frank Pray handles cases related to most areas of employment law. My law firm is dedicated to helping employees dealing with issues of workplace discrimination (including gender discrimination, race discrimination, age discrimination and discrimination based on religion, national origin, sexual orientation, disability, pregnancy or illness); harassment due to hostile work environment (whether sexual, verbal, or other); contract disputes; wage and hour violations (such as overtime or break violations); whistleblower retaliation, qui tam and false claims act cases; and severance agreements and negotiations. My legal services and advice are available to any employee involved in illegal or wrongful termination, assault, battery, defamation, slander, or violation of privacy; or with job concerns regarding medical leave, Occupational Safety & Health Act (OSHA), affirmative action, gay & lesbian rights, Fair Employment and Housing Act (FEHA), labor code violations, Americans with Disabilities Act (ADA), California Family Rights Act, the federal Family Medical Leave Act, Employee Retirement Income Security Act (ERISA), Worker Adjustment and Retraining Notification (WARN) Act, or the Federal Employer's Liability Act. I can be contacted by anyone seeking an attorney for information about employee civil rights, or opportunities for monetary settlement, damages, or personal injury claims. "Employee Rights" is my exclusive focus, and has been for over 15 years.

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