Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

By Milton Castro

In a recent “off-the-clock” case, the Seventh Circuit Court of Appeals affirmed an Indiana district court decision and held that the time an employee spends before his or her shift in preparation for the shift is not compensable – even if such time is in excess of 10 minutes and to the significant benefit of the employer – if the employer does not know or have reason to know that the employee is regularly working this off-the-clock time.

In the case, Plaintiff Susan Kellar alleged that she regularly arrived at Defendant Summit Seating Inc.’s (“Summit”) worksite between 15 and 45 minutes before the start of her shift. According to the plaintiff, she would then typically spend:

• 5 minutes unlocking doors, turning on lights, turning on equipment, and punching into the time clock;
• 5 minutes preparing coffee for herself and the rest of the employees;
• 5-10 minutes (or longer) gathering material and distributing it to her subordinates’ workstations; and
• 5 minutes taking a coffee / smoking break.

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The United States Supreme Court recently declined to accept review of the decision in Sepulveda v. Allen Family Foods, Inc., a case in which the Fourth Circuit Court of Appeals held that time spent donning and doffing protective gear at a unionized poultry processing plant constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and, thus, was not compensable time for which the employees must be paid. The former employee who filed the lawsuit in the first place and filed the petition before the Supreme Court presented the following question for review by the Supreme Court: “When calculating compensable time under the FLSA, does section 203(o)’s exclusion of ‘time spent in changing clothes’ apply to time spent donning and doffing protective equipment that is put on over unchanged clothes - a question on which multiple circuits have split.”

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Back in April, we reported that the Division of Wage and Hour Compliance at the New Jersey Department of Labor and Workforce Development was reconsidering its prior enforcement policy rejecting federal “rounding” rules under New Jersey law. On July 6, the Department formally announced its proposal to adopt a new rule which would adopt, verbatim, the federal regulation regarding the use of time clocks and rounding practices. The Department explained that

“[The proposed new rule would] eliminate any possible confusion regarding the Department’s wage and hour enforcement policy relative to the use of time clocks and ‘rounding’ practices.”

Specifically, the proposed rule will bring New Jersey back into conformity with federal law, creating a “straight forward and simple approach” for employers in New Jersey.

A public hearing on the proposed new rule will be held on July 29, 2010, at the office of the New Jersey Department of Labor and Workforce Development in Trenton, New Jersey.

This entry was written by Robert W. Pritchard.

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The Ninth Circuit recently re-issued an opinion that illustrates the many work-time issues raised when employees commute between home and service sites in company vehicles. Rutti v. Lojack Corporation (9th Cir., No. 07-56599, Mar. 2, 2010). The court affirmed its initial, important finding that an employer can make commuting in a company vehicle a condition of employment without affecting the compensability of the commute time under the federal Employment Commuter Flexibility Act (ECFA). The court of appeals affirmed its initial finding that small amounts of time spent in the morning working out the route for the day were not compensable work time either because the time was incidental to the commute and, therefore by definition not work time, or was so de minimis as to not be considered to be work time.

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In Allen v. McWane, the Fifth Circuit considered whether an employer is required to pay for pre- and post-shift donning and doffing of protective gear under Section 203(o) of the Fair Labor Standards Act (FLSA) where the company and the union never discussed the issue, and where the employees (and union representatives) attested that they were not even aware that changing time could potentially be compensated under the FLSA. Section 203(o) of the FLSA provides that an employer does not have to pay its employees for time “changing clothes or washing at the beginning or end of each workday ... by custom or practice under a bona fide collective bargaining agreement.” 29 U.S.C. § 203(o).

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In Sepulveda v. Allen Family Foods, Inc., the Fourth Circuit held that the company does not have to pay its employees for time spent donning and doffing because it was the subject of collective bargaining between the union—the United Food and Commercial Workers Local 27—and the company. Specifically, the issue in this case was whether time spent donning and doffing protective gear at a unionized poultry processing plant constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This section provides that that an employer does not have to pay its employees for time “changing clothes or washing at the beginning or end of each workday ... by the express terms of or by custom or practice under a bona fide collective bargaining agreement.” 29 U.S.C. § 203(o).

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Kellogg Company (Kellogg) was granted summary judgment and dismissal of claims raised by a manufacturing employee in its Rossville, Tennessee manufacturing plant. In Franklin v. Kellogg Company, C.A. No. 08-2268 (W.D.Tenn.), the district court held that time spent by manufacturing employees changing into and out of company-issued gear was noncompensable under Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This is because Section 3(o) excludes time spent by employees donning and doffing “clothes” from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement.

Plaintiff Alice Franklin claimed that she was entitled to compensation for time spent changing into and out of company uniforms and other gear both prior to and after her work shifts. She sought to represent Kellogg employees on a nationwide basis. Ms. Franklin’s motion to certify a collective action under the FLSA, however, was rendered moot by the court’s finding in favor of Kellogg. As an initial matter, the court found that the company uniform and standard equipment used by the plaintiff constituted “clothes” under Section 3(o). The uniforms in question consisted of pants, snap front shirts and slip-resistant shoes and the standard equipment included hair nets, beard nets, safety glasses, ear plugs and bump caps. The court relied on its prior decision in Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D.Tenn. 2008), holding that protective gear worn by meat processing employees fell under the definition of clothes under Section 3(o). It found that plaintiffs failed to present any compelling reason to reconsider that holding.

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On July 27, 2009, the Eleventh Circuit affirmed the district court’s denial of class certification in Babineau, et al. v. Federal Express Corporation, a decision that may impact wage and hour cases brought under state law. The plaintiffs sought Rule 23 certification of a broad class of hourly employees in Florida, alleging state law claims for breach of contract and quantum meruit. The breach of contract claim consisted of allegations that plaintiffs were not paid for: (1) work performed during “gap periods” (any time interval between their manual punch in and their scheduled start time and/or any time interval between their manual punch out and their scheduled stop time); and (2) work performed during unpaid break periods. 

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In the case of Kasten v. Saint Gobain Performance Plastics Corp., the Seventh Circuit Court of Appeals recently considered the question of whether verbal complaints may constitute protected activity under the FLSA. In this case, the plaintiff alleged that he verbally complained to his supervisors and the company’s human resources department about the legality of the location of the company’s time clocks. The plaintiff alleged that he told two supervisors and a human resources employee that the placement of the clocks was illegal because it prevented employees from being paid for time spent donning and doffing required protective gear.

The Seventh Circuit first affirmed the district court’s conclusion that internal, intra-company complaints may be protected activity for purposes of the anti-retaliation provision of the FLSA. The Court then turned to the question of whether verbal, intra-company complaints may be protected activity.

The Seventh Circuit held that because the FLSA prevents employees from being retaliated against for filing complaints, the statute could not be interpreted as intending to protect unwritten complaints. The court viewed the “natural understanding” of the phrase “file any complaint” to connote the use of a writing. Therefore, to constitute protected activity under the FLSA, the “complaint” must involve the submission of a writing to an employer, court, or administrative body. Notably, other courts have reached a different conclusion.

This blog entry was authored by Theresa Waugh.
 

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A federal district court ruled that hourly production and maintenance workers at U.S. Steel’s Clariton, Pennsylvania coke plant were not entitled to compensation for time spent donning, doffing, and showering at the beginning and end of their work days under Section 3(o) of the Fair Labor Standards Act (“FLSA”). Section 3(o) effectively excludes time spent by employees donning and doffing “clothes” or washing time from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement. The FLSA does not define the term “clothes,” and many courts have disagreed over what constitutes changing clothes.

In Andrako v. United Steel Corp., plaintiffs brought an FLSA collective action alleging violations based on the company’s failure to compensate for donning and doffing certain protective equipment, showering time, and time spent walking to and from their working stations. The court held that the items donned and doffed by U.S. Steel workers plainly were clothes within the meaning of the statue. In making its determination, the court noted that it was applying a common and ordinary meaning of the term. The items in question included safety glasses, hard hats, flame retardant jackets and pants, flame resistant gloves, hearing protection, snoods or hoods, wristlets, and respirators. The court rejected plaintiffs’ narrow construction that Section 3(o) should not apply to any apparel or equipment intended for protection and/or required by the employer or law. Similarly, the court rejected the plaintiffs’ argument that showering does not fall with Section 3(o)’s exception for washing time.

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On January 21, 2009, the City of Phoenix obtained summary judgment in a collective action brought by approximately 600 police officers claiming millions in unpaid work. What were the officers claiming? That the City should have compensated them for time spent putting on and taking off police uniforms and gear. In the matter of Dager et al. v. City of Phoenix, Case No. 2:06-cv-01412-PHX-JWS, the U.S. District Court for the District of Arizona ruled that the City did not have an obligation to pay its police officers for the time spent donning and doffing (i.e., putting on and taking off ) their police uniforms and gear. Specifically, Judge John Sedwick held that under Ninth Circuit precedent and the persuasive guidelines of the U.S. Department of Labor, only those employees actually required to change at work could claim that the time spent donning and doffing was compensable. The evidence in the case showed that the City allowed officers to change at home or at the station, depending on their own preference, and that a significant number of officers, including some of the claimants, regularly changed into their uniforms and/or gear at home. The court also held that, although the City's police department required officers to wear certain specified uniforms and protective gear, the uniform itself was not 'necessary" to the performance of police work (as the term necessary is defined under applicable regulations and case law).

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