A growing number of lawsuits, including collective action cases, are aimed at requiring employers to pay employees such as nurses and other surgical staff starting from the time they commence getting changed into their required work clothes. Until recently, hospitals and health systems may not have thought twice about requiring nurses to change into their sterile scrubs in the hospital locker room but not paying for the time to get changed or walking to the unit from the locker room.
In November 2011, a group of nurses filed a collective action lawsuit against HealthOne of Denver, claiming, among other things, that because their employer required them to “don and doff” their scrubs on the Hospital’s premises, they should be paid overtime for the time spent walking to the locker room, getting changed and then walking to their unit. Likewise, the nurses claim they should be paid for the time spent at the end of their shift walking to the locker room, getting changed into their street clothes and walking to the time clock to punch out for the day.
In December 2012, the District Court conditionally certified a class of “All current or former non-exempt employees… who performed any job that…(1) required that person to change into and out of scrubs on Defendant’s premises before clocking in and after clocking out; and/or (2) who were required to remain on call and were required to perform work duties while clocked out on meal breaks.”
This case is quickly coming to conclusion, with a ruling on the merits possibly coming by the end of the year.
The Law
- Time spent “changing clothes” is not generally compensable as hours worked unless:
- It is a “principal activity” (i.e., integral and indispensable to an employee’s job); or
- It is deemed compensable hours worked by the rules of the employer (i.e., by collective bargaining agreement).
- Time spent donning/doffing protective equipment is generally compensable.
- So far, there are no judicial opinions analyzing whether scrubs worn by certain medical staff are considered “clothing” or “protective equipment.”
If the Denver Court rules that requiring nurses to change into and out of their scrubs at the Hospital makes that activity a “principal activity” or that the scrubs are “protective equipment,” we expect similar lawsuits to be filed nationwide. While the amount of time in question may seem nominal, the liability adds up quickly. Adding just 15 minutes per day for a nurse can mean an extra 60 hours per year of paid time per nurse at overtime rates. With a potential three-year statute of limitations and a statute that allows for doubling the back pay award and payment of attorney fees to the plaintiffs, the potential risk is substantial.
What Employers Should Do Right Now
Employers are well-advised to review existing pay practices as they relate to compensation for time changing into sterile scrubs. If employees are required to change into scrubs on your premises, paying them to do so will significantly reduce the risk of future collective action litigation.
For more information, please contact Bruce M. Bagdady at 248.457.7839 or bbagdady@wp.hallrender.com or your regular Hall Render attorney.
