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

The employees principally argued that Section 203(o) was inapplicable because the union did not “affirmatively” bargain away potential compensable donning and doffing time during negotiations and, therefore, the company could not have a “custom or practice under a bona fide collective bargaining agreement.” In particular, the employees relied on Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063 (D. Minn. 2007), where the court “identified three elements as essential to determine the existence of a ‘custom or practice‘ under § 203 (o): time, knowledge, and acquiescence.” In Kassa, the district court found that the employer’s custom and practice did not meet these requirements because the record only established non-payment by the company for six years. In contrast, in Allen, the company had not compensated its employees for changing time since 1965. Moreover, the court noted that the employees knew that they were not being compensated for that time, and whether they were aware of their legal rights under the FLSA was not a relevant consideration. Consequently, the court affirmed summary judgment.

The court also rejected the employees’ contention that Section 203(o) should be characterized as an “exemption” under the FLSA, thereby shifting the burden of proof to the employer to establish the exemption as an affirmative defense.. The court reasoned that Section 203 “is a list of definitions and subsection (o) addresses how to define and calculate ‘hours worked,’ in contrast to Section 213, which is titled ‘Exemptions.’”

The Fifth Circuit is now in accord with the Third and Eleventh Circuits, which also have concluded that it is not necessary to raise the issue of compensation for donning and doffing time in negotiations. Anderson v. Cagle's, Inc., 488 F.3d 945, 958-59 (11th Cir. 2007); Turner v. City of Philadelphia, 262 F.3d 222, 226 (3rd Cir. 2001). Notably, only the Ninth Circuit has characterized Section 203(o) as an exemption. See Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003), aff’d on other grounds, IBP, Inc. v. Alvarez, 546 U.S. 21 (2005); cf. Anderson, 488 F.3d at 957.

This entry was written by Steven Kaplan.

The employees were required to wear steel-toe shoes, a smock, plastic apron, safety glasses, ear plugs, bump cap, hair net, rubber gloves and sleeves, and arm shields. In addition to donning and doffing these items at the beginning and end of each work day, employees were also required to sanitize their gear by dipping their gloves into a tank, splashing the liquid solutions onto their aprons, and stepping through a footbath before and after working and during extended breaks. The company had a long standing practice of paying its employees for time on the production line only.

In 2002, the union proposed that its members be paid for twelve minutes of donning and doffing time per day. The company rejected the union’s offer and continued to pay its employees for production line work only. In 2007, three production employees filed a putative collective action in which they were joined by approximately 250 current and former production workers.

The employees argued that Section 203(o) was inapplicable because the items were not “clothes” and the act of donning and doffing them was not “changing.” For example, they argued that “clothes” encompassed “regular undergarments and outerwear,” i.e., street clothes, and excluded protective safety items in the workplace. The court found the employees’ “cramped” and “narrow” definition of “clothes” and “changing” unpersuasive, reasoning that the purpose behind Section 203(a) was to leave such donning and doffing activities to the collective-bargaining process.

The court noted that Congress recognized that employers and unions are in a better position than either courts or agencies to “thresh out” how much compensable time should be allocated for “changing clothes.” Additionally, the court observed that collective bargaining allows employers and unions to reach agreements that leave both sides more satisfied than a government or court-imposed solution and that unions may be willing to trade higher wages, enhanced benefits, or improved working conditions in exchange for compensation for changing clothes. Notably, in stark contrast to this decision, the Ninth Circuit reached a different result in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005), holding that protective items worn in the beef and pork industries are not “clothes” within the meaning of Section 203(o).

This entry was written by Steven Kaplan.

Regarding her overtime claims, Ms. Blackwell alleged that SkyWest violated California’s Wage Order 9 by failing to pay her daily overtime based on alternative work schedule rules and shift trades. The court disagreed, holding that where state law claims require a court to interpret the terms of a collective bargaining agreement (CBA), those claims are pre-empted under the RLA. This is because the RLA provides a mechanism for settling labor-management disputes - both major and minor disputes.

The court explained that Ms. Blackwell’s argument ran counter to congressional intent. Notably, in determining whether the provisions in question violated state law, the court would have to construe the CBA under state law principles. The court cautioned that doing so could increase uncertainty and dissent among parties in labor negotiations and undermine federal labor laws.

The court found Ms. Blackwell’s state law claims were “‘inextricably intertwined’ with the meaning of terms in the CBA.” The SkyWest-SAFA CBA contained express provisions concerning overtime, shift trades and meal and rest periods. Therefore, the court’s inquiry into Ms. Blackwell’s state law claims would require the court to impermissibly interpret the CBA’s terms according to California law.

The court further held that even state law disputes that invoke an implicit term of a CBA are likewise pre-empted by federal law. An implied term can arise from practices, usage and customs under the agreement. At issue were meal and rest periods not specifically addressed under the SkyWest-SAFA CBA. SkyWest argued that state meal and rest period requirements may conflict with federal aviation and security regulations, including the Airline Deregulation Act. Those regulations, in certain instances, conflicted with California’s meal and rest period requirements. SkyWest asserted that because compliance with federal aviation and security regulations was not optional, these regulations were implicitly part of the parties’ CBA. The court agreed and found that resolution of Ms. Blackwell’s meal and rest period claims would require it to interpret the CBA’s terms under state law. It noted that doing so not only violated congressional intent, but could subject SkyWest to “‘inconsistent interpretations in different jurisdictions.’” The court granted summary adjudication in SkyWest’s favor on the state meal and rest period claims.

While there are very few rulings that have held California’s wage and hour laws are pre-empted by federal law, the application of this ruling outside the heavily regulated airline industry is yet unknown. The decision is by a trial court and not considered binding authority for other cases; however, the decision is decidedly a large victory for SkyWest. Moreover, it will provide other airline industry employers and other employers subject to incongruent federal directives and state law with an even stronger argument, under the RLA, that they are not required to comply with California state wage and hour laws, including meal and rest period requirements.

This blog entry was authored by Stacey James and Tina Winston.