Whether to Compensate Employees For Time Spent Changing Uniforms

Demi Sophocleous and Kevin A. Hickman New York Law Journal July 23, 2010

Demi Sophocleous

Kevin A. Hickman Image: New York Law Journal Mentioning the name of Hooters Restaurant to most members of the general public calls to mind images of an eatery with waitresses dressed in an iconic uniform. But, should the act of putting on and taking off that iconic uniform be an event for which the Hooters employee is compensated? This issue is at the center of a recently filed class action complaint in the Superior Court of California, wherein a group of Hooters servers are seeking recovery of wages representing payment for time spent getting into and out of uniform each day. A particular subset of employment law litigation has focused on the issue of "portal-to-portal pay." Essentially, courts have been asked on a number of occasions to determine under what circumstances an employee should be compensated by his employer for the acts of preparing to work by getting into uniform or putting on job-specific gear and then removing this uniform and gear at the end of a work day. While courts have typically been willing to side with employees seeking compensation for donning and doffing activities under limited circumstances, the suit in the Superior Court of California against the Hooters chain of restaurants is attempting to broaden the scope of the types of professions, and the types of activities, that would fall within the scope of such compensation. This article will examine the history of portal-to-portal litigation, and will discuss the case against Hooters under the standards in place to date.

Statutory Authority The Portal-to-Portal Act is a specific provision governing the entitlement of an employee to portal-to-portal compensation. Specifically, 29 USC 254 provides, in relevant part, that: no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities Essentially, under 254, preliminary and postliminary activities are not compensable, meaning that only those activities that can be said to be "principal activities" of an employee that nonetheless occur away from the workplace would entitle an employee to portal-to-portal pay under the act. Not surprisingly, the activities that are deemed to be "principal activities" have been hotly contested and are ever-changing, as can be seen in the Galakhova case against Hooters Restaurants. History of Litigation The U.S. Supreme Court has held that any activity that is "integral and indispensable" to a principal activity of employment is itself a principal activity of employment for purposes of compensation under 254. IBP Inc. v. Alvarez, 546 U.S. 21 (2005), Steiner v. Mitchell, 350 U.S. 247 (1956). The IBP case, supra, involved workers at a meat processing plant that were required, as a part of their daily activities, to wear certain protective gear during the performance of their duties, which they would don at a certain location prior to walking to their position at the plant. The Supreme Court held that the employer was required to compensate the employees for the donning and doffing of the protective gear and the time spent walking to and from their position because these activities were "integral and indispensable" to the job of meat processing. The Supreme Court also determined that the maintenance of knives and other cutting tools by butchers in a slaughterhouse was "integral and indispensable" to the butcher's trade, and the lower courts have repeatedly held that the caring for tools of one's trade are compensable activities under the Portal-toPortal Act. See, e.g. Steiner, 350 U.S. 247, Abel v. Morey Machinery Co., 10 F.R.D. 187 (D.C.N.Y., 1950), Abbott v. American Machine & Foundry Co., 9 F.R.D. 310 (D.C.N.Y., 1949). On the other hand, the U.S. Court of Appeals for the Second Circuit has observed that the donning and doffing of "general protective gear" is not sufficiently integral or indispensable so as to give rise to compensation. Gorman v. Con. Edison Corp., 488 F.3d 586 (2d Cir. 2007). In the Gorman case, employees at a nuclear energy plant sought to obtain compensation for activities such as passing through security checkpoints and donning helmets and steel-toed boots. The Second Circuit, in affirming the denial of the employees' claims, held that these activities were merely "preliminary and postliminary" activities that were specifically excluded from compensation by the Portal-to-Portal Act. Id. Specifically with respect to the protective gear, the court held that the items of protective gear required by the employer were generic in nature and were analogous to simply changing clothes to go to work. As such, the Second Circuit declined to extend a classification of "integral and indispensable" to such activities.

In other jurisdictions, courts have been willing to extend compensation to police officers for time spent donning and doffing the police uniform and specific protective equipment, because such equipment is seen to be necessary to the performance of the officer's duties and is done for the benefit of the public. See, e.g. Lemmon v. City of San Leandro, 538 F.Supp.2d 1200 (N.D.Cal., 2007). 'Galakhova v. Hooters' With the aforementioned case law as precedent, several servers at California Hooters restaurants commenced a class action against the corporate parent company and subsidiaries of the Hooters chain, alleging various violations of the Fair Labor Standards Act, including the failure of the employer to provide rest and meal periods and improperly deducting cash shortages from the employees' wages. In addition, the plaintiffs in the Galakhova case argue that the defendants' employee handbook specifically requires the wait staff at its restaurants to arrive for their scheduled shifts dressed in full uniform as specified by the company, and to appear "camera ready" at all times during the work day. Additionally, upon their arrival at the restaurant, the plaintiffs claim that they are subject to "uniform checks" which include checks for compliance with grooming standards as set forth by the defendants. The plaintiffs claim that the process of appearing "camera ready" when reporting to work requires them to spend considerable time styling their hair and applying makeup in addition to putting on the specified uniform, all prior to arriving at the restaurant for work. Additionally, the plaintiffs claim that the process of removing the uniform, makeup and hairstyling products is expected to be performed while off the clock. In light of the fact that Hooters restaurants require the wait staff to report to work having achieved a certain rigorously defined appearance, the plaintiffs seek a determination from the court that they are entitled to 45 minutes of compensation for donning the work uniform, styling their hair and applying makeup, and 15 minutes of compensation for doffing the uniform at the end of the work day. In essence, the plaintiffs in the Galakhova case are claiming that the Hooters defendants have determined that the appearance of the wait staff is "integral and indispensable" to the job of waiting on customers at Hooters restaurants. Accordingly, the plaintiffs claim that employees are required to arrive at the restaurant completely prepared for work and are not permitted to clock in for a shift unless they are in full uniform and "camera ready," but that they should be compensated for the time spent donning the apparel that is essential to their job responsibilities. The defendants in the case, on the other hand, are likely to argue that the donning of the specified Hooters uniform is preliminary in nature. They will likely argue that the donning of the uniform simply amounts to getting dressed for work, and should not be compensable. After all, the uniform required by Hooters establishments does not include any personal protective equipment or gear such that the articles comprising the uniform are specialized pieces of equipment. Essentially, it is unclear whether the plaintiffs or the defendants are likely to ultimately prevail in this case. However, it is clear that the ultimate outcome of the case will have a substantial impact on the future of litigation under the Portal-to-Portal Act, as a victory for the plaintiffs would open the door to many similar claims, and a victory for the defense would foreclose such litigation. Conclusion While the Galakhova case represents an attempt to expand an employee's entitlement to portal-to-portal compensation under 29 USC 254, the outcome of the case with respect to this point will determine whether future expansion of employer liability can be expected in this area of the law. The court will be required to determine whether the act of donning and doffing the Hooters Restaurant uniform is so critical to the conduct of business under the work rules and business model of the company so as to be deemed a "principal activity" of the job of serving Hooters customers.

Needless to say, the plaintiffs seek to expand the scope of compensable activities under 254, and both the plaintiffs' and defense bars would be well advised to closely monitor the outcome. In the event that the plaintiffs are successful, an entirely new area of this type of litigation will ensue. Conversely, should the defendants successfully defeat the claim, future suits will be less likely because of the precedent set by the Galakhova case. Demi Sophocleous is a partner in the New York office of Morrison Mahoney. Kevin A. Hickman is an associate with the firm in New York.