Hunton Employment & Labor Perspectives

The USDA’s Food Safety and Inspection Service (“FSIS”) is proposing an amendment to USDA regulations that would require meat and poultry processors to pay overtime to USDA inspectors who engage in donning and doffing activities that, when combined with the time spent engaged in inspection activities, result in more than 8 hours of work per day.  The FSIS claims that the amendment is necessary to achieve compliance with the Supreme Court’s decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), and the Office of Personnel Management’s interpretation of that decision.

By law, any meat processing establishment that contains slaughter operations must have USDA inspectors on site to inspect the slaughter process.  The FSIS bears the costs of mandatory inspection activities provided by the USDA inspectors during non-overtime hours of operation, defined under the regulations as 5, 8-hour days per week.  The slaughter facilities must pay for inspection activities performed on an overtime basis, which includes not only weekly hours exceeding 40 hours but also daily hours exceeding 8 hours.  Under current regulations, the time inspectors spend putting on and taking off protective and sanitary clothing and equipment and other related preliminary and postliminary activities (such as walking to and from the production areas) are not taken into account in applying the overtime analysis.  The proposed amendment would change the current practice and require that donning and doffing activities be included in the analysis.

Assuming the amendment survives the notice and comment process, meat processors with slaughter operations that run 8-hour production shifts must decide between one of two options:  (1) shorten production times so that donning and doffing activities all occur within the standard 8-hour day or (2) pay the overtime associated for donning and doffing activities that exceed the standard 8-hour day.  FSIS said that it expects that most slaughter facilities will choose to pay the additional overtime because it will not be as costly as lost production time.  Specifically, FSIS reports that it conducted on-site time studies at various establishments to estimate the average time inspectors spend engaged in donning and doffing activities and determined that 15 minutes per day was a reasonably conservative estimate.  The FSIS went on to add that, based on this estimate, the average additional cost per inspector will be about $4,345 per year based on FY2011 hourly rates.

Regardless of which option meat processors choose, they should undertake a donning and doffing compliance audit to identify ways to lessen the amount of time that inspectors spend engaged in donning and doffing activities, including re-engineering plant processes and layouts and evaluating whether the various clothing and equipment worn by the inspectors is necessary.  To ensure that any such changes comply with Alvarez and other applicable authorities, meat processors should engage outside counsel to assist with this audit process.  Meat processors may also want to file comments to the proposed amendment, which are due on September 8, 2010.