AMI Urges FSIS to Minimize Economic Impact of Proposed Changes to Schedule of Operations RegulationsThursday, September 9, 2010
(American Meat Institute)
AMI is urging the Food Safety and Inspection Service (FSIS) to use the appropriate test to determine compensability and to provide maximum flexibility in order to minimize the adverse economic impact of proposed changes to the Schedule of Operations regulations. In a proposed rule FSIS is seeking to amend the current regulations to provide that the work day “shall include the necessary time for FSIS inspection program personnel to put on required gear and to walk to a work station, and the necessary time for FSIS inspection program personnel to return from a work station and remove required gear….”
AMI’s comments point out that the agency is not utilizing the correct test for determining whether preliminary and postliminary clothes changing and walking are compensable under the Fair Labor Standards Act. The comments explain that the agency misapplies the standard established by IBP, inc. v. Alvarez and subsequent case law. Post-Alvarez court decisions have made clear that the test for the compensability of preliminary and postliminary activities involves consideration of the following factors: (1) whether the activity is required by the employer, (2) whether the activity is necessary for the employee to perform his or her duties, and (3) whether the activity primarily benefits the employer. “The test is not solely whether an item of clothing is required by the employer or government regulation. Similarly, the agency’s reliance upon ‘required gear’ does not address the elements of the Office of Personnel Management’s (OPM) regulation for evaluating whether preparatory or concluding activities are compensable as ‘hours worked,’” said Mark Dopp, AMI’s senior vice president, regulatory affairs and general counsel.
In addition, AMI commented on the agency’s cost-benefit analysis assumption that all establishments affected would pay 15 minutes of overtime per inspector. Specifically, the rule’s preamble states that the actual time for donning and doffing of gear will vary based upon plant specific variables and the agency’s estimated time study measurements for donning, doffing and walking, on average, was 6.5 minutes for poultry inspectors and 12.24 minutes for livestock inspectors.
AMI’s comments note that an assessment of 15 minutes for these activities is 230 percent and 23 percent higher, respectively, than the agency’s own, actual time study measurements. “The agency needs to make clear that ‘hours worked’ includes actual time for donning, doffing, and walking by inspectors, and that its assumption for costing purposes is not an endorsement that every affected inspected establishment will be assessed 15 minutes of overtime,” said Dopp.
“Moreover, because no two establishments are identical in their layouts the agency should not just assume that the donning, doffing, and walking time will trigger a 15 minute overtime charge,” Dopp noted. In that regard, many establishments have conducted comprehensive studies regarding the amount of time it takes for their employees to walk from the location where the employees don and doff their clothing and equipment to the employees’ respective work stations. “To the extent this data can be applied to individual inspectors and the actual time spent in these activities, the final rule must be written to allow companies to provide to FSIS any data the company has about the time it takes for inspectors to travel or walk to and from work stations,” Dopp said.
Finally, AMI commented that the final rule should be written to allow, where practical, establishments to make available an inspector’s clothing and/or equipment at or near the inspector’s workstation. “Making these items available at or near the inspector’s work station would eliminate from compensable time the time spent walking to and from that location. Because the establishment cannot operate until the inspector is at his or her work station such an approach would not adversely affect the inspector,” Dopp concludes.
To view a copy of AMI’s comments, click