On April 1, 2024, the NAM filed an amicus brief urging the U.S. Supreme Court to resolve a circuit split regarding the proper legal framework to apply for determining whether time spent putting on and taking off personal protective equipment (“donning and doffing” time) is compensable under the Fair Labor Standards Act. In this case, the plaintiff oil rig workers sued their employer under the FLSA for failure to compensate them for time spent donning and doffing generic PPE—fire retardant overalls, steal-toe boots, hard hats and safety glasses—at the beginning or end of their workday. The district court held that the time is not compensable, but the 3rd Circuit reversed on appeal. The 3rd Circuit rejected the test applied by the lower court—also adopted by the 2nd Circuit—and embraced a different, more plaintiff-friendly test to govern compensability determinations.
We argue that review is necessary to resolve the circuit split and provide certainty to manufacturers regarding their compensability determinations. If the U.S. Supreme Court does not agree to hear the case, manufacturers will be harmed by the 3rd Circuit’s test which not only calls standard compensation practices into question, but potentially expands the workday to include activities commonly completed at home and could spur a flood of litigation.
Unfortunately, on June 3, 2024, the Court denied the petition for certiorari.