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FSIS Publishes Final Rule on Donning and Doffing and Overtime Policy

Tuesday, June 14, 2011

(American Meat Institute)

The Food Safety and Inspection Service (FSIS) published in the Federal Register a final rule, Changes to the Schedule of Operations, amending 9 CFR 307.4 and 9 CFR 381.37 to provide that the basic workweek (5 consecutive 8-hour days) includes the time that  FSIS inspectors spend putting on required gear, walking to and from a work station, and removing the required gear.

In short, this rule change affects the workday of inspectors who must perform on-line duties in order for the establishment's line to start operating and it could result in additional overtime charges for companies to cover the time spent by inspectors donning and doffing required gear and for walking time.

This rule is the result of the Supreme Court’s decision in IBP, Inc. v. Alvarez, in which the Court considered questions concerning the Portal-to-Portal Act’s applicability to activities incident to the “donning and doffing” of protective gear by, respectively, employees in the meat and poultry industries.  The Court held that walking time after donning and before doffing protective gear is compensable.  The Court also held that, although time spent waiting to doff the gear at the end of the day is compensable; time spent at the beginning of the day waiting to don protective gear is not compensable, unless the employer has specifically required the employee to be present at that time in order to wait.

In the wake of the Alvarez decision the inspectors’ union filed a grievance, which the agency and the union subsequently settled.  That process led the agency to publish a proposed rule in August 2010 and this final rule is the result of that process. 

To view the specifics of the rule, go to http://www.gpo.gov/fdsys/pkg/FR-2011-06-10/html/2011-14442.htm.

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