Tuesday, June 7, 2011, 7:02 PM

Much Ado About Donning and Doffing

Jump a third of the way down the attached Fourth Circuit opinion to get past the caption; there are three named plaintiffs in Perez v. Mountaire Farms, Inc, but all of those who joined the invitation to participate in the case - more than 500 - are listed in painstaking detail. The decision begins at the bottom of page 21, and a concurring opinion by Judge Wilkinson starts 30 pages later. Happily, the substance of the ruling is easy to summarize: (1) Time spent by poultry processors in putting on protective gear at the beginning of the workday and taking it off at the end - "donning and doffing" - is compensable "work" which has to be paid at the regular hourly rate and, if those activities cause the workweek to exceed 40 hours, count toward overtime. (2) When the employees break for meals, their time spent in doffing and donning isn't paid time. (3) The employer didn't act willfully, so the two-year statute of limitations applies rather than the three year period. (4) The employer acted in good faith and was not liable for the double-back-pay remedy of "liquidated damages." (For a preview of these last two holdings, see our May 27, 2011 posting, "Where There's a Will, Is It Willful?")

The litigation in Perez began in January, 2006. Don't be surprised if there's either a motion for rehearing by the full court, en banc, or a petition for certiorari filed with the Supreme Court. The stakes are large; the District Judge struck an intermediate figure between Mountaire's expert's calculated 10.2 minutes per day and the plaintiffs' "slight overestimation" of almost 21 minutes, deciding the daily time in question to be 17 minutes. When the case returns for the computation of back pay, 17 minutes a day for about 500 work days over two years work days comes to 8500 minutes - over 90 hours - apiece. If the overtime exposure is added, the numbers could get even larger. And that, dear reader, is why these cases get filed, and why they're vigorously defended.

See Perez v. Mountaire Farms, Inc.

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