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The letter also examines whether clothes changing covered by Section 203(o) may be a principal work activity such that any subsequent activities such as walking and waiting become compensable working time. In 2007, the Administrator concluded that clothes changing activities encompassed by Section 3(o) were not principal work activities and, therefore, walking and waiting that occurred immediately thereafter would not be compensable. The new interpretation rejects the 2007 letter and concludes clothes changing covered by section 203(o) may be a principal work activity.

To learn more about this development and its implications for employers, please continue reading Littler's ASAP, Department of Labor Issues Interpretation Narrowing Clothes-Changing Exclusion and Expanding Scope of Compensable Workday, by Laurent R.G. Badoux and Michael J. Lehet. 

This entry was written by Lee Schreter.

Photo credit: tomazl

Providing context for its decision, the court noted that Congress intended to exclude certain pre- and post-shift activities from work time when it enacted the Portal-to-Portal Act to amend the Fair Labor Standards Act. Under that amendment, as further stated in a persuasive 2006 DOL memorandum, changing clothes under usual circumstances is not compensable. In this case, the City had a policy of allowing officers to dress wherever they preferred, including at home, but required motorcycle officers to dress at home. The Court agreed that to the extent officers elected to dress at work, their decision was strictly a matter of employee convenience, and, as a result, their decision to change clothes at work did not render that time compensable.

The court recognized that previous decisions from the United States Supreme Court and the Ninth Circuit allowed compensation for donning and doffing, but in all those cases, changing clothes had to be performed on the employer's premises because of the nature of the work, a policy of the employer, or applicable law. Those cases provided the following three-part test to assess whether pre- and post-shift activities are compensable: (1) does the activity constitute "work"? (2) is the activity an "integral and indispensable duty" of the job?, and (3) is the activity so insignificant in scope and duration as to be excluded from compensability as de minimis?

The court expressed doubt whether the act of changing in and out of a uniform and gear constituted "work," but proceeded to the second prong of the test where the officers' argument "fatally falter[ed]." To be "integral and indispensable, a pre- or post-shift activity must be "necessary to the principal work performed and done for the benefit of the employer." Both the majority and the dissent deemed that the act of donning and doffing a uniform was not integral to the job and, therefore, was not compensable. The majority noted that, although there was no dispute that the uniform and gear was required, the process of donning and doffing was not required to occur at work, and was equally effective whether performed at home or work. There was no mutual obligation fulfilled by donning and doffing at work, and the ultimate decision was a matter of convenience to the employee, not the employer. The dissent also recognized that the uniform may connote authority but does "not assist the officers in making arrests, interviewing witnesses or writing reports," and, therefore, is not integral.

The majority considered the gear used by officers in the same context as (and as part of) their uniform and found it to be indispensable but not integral to the principal duty of law enforcement. The dissent reasoned that the police gear assisted officers in the performance of their principal duty, and, consequently, was both indispensable and integral. The dissent further noted that the time spent donning and doffing gear was most likely a matter of only "seconds, or a few minutes," which would make that time non-compensable as de minimis. The dissent concluded that the case should be remanded because the record does not contain evidence of the amount of time actually required for donning and doffing gear.

This decision is significant for private employers as well. To the extent any employer requires its employees to wear a uniform (or gear), this decision provides a framework for determining whether an employee is entitled to compensation. Although certain factors or set of facts may lead to variations, employers requiring its employees to don and doff uniform and gear at work are likely required to compensate employees for that time—provided it is not de minimis—but employees are generally not entitled to compensation if they have the right to change at home at the beginning and end of their workday.
 

This entry was written by Laurent Badoux.

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 the collective bargaining agreement in question, the court found that a long-established custom or practice of non-payment for changing time existed between Kellogg and its unionized workforce. The court explained that parties to a collective bargaining agreement are not required to undergo formal negotiations to establish a custom or practice, but rather one can be established as an implied term of the parties’ agreement through a period of acquiescence. In reaching its decision, the court noted that there were internal discussions amongst union members regarding the issue of payment for changing time, but the union had not pursued the issue during negotiations with Kellogg. In fact, the record evidence demonstrated that one union official told Ms. Franklin that the practice of non-payment for changing time had been going on for a long time.

The court further acknowledged that this issue had been raised by other Kellogg employees in a prior action filed in 2005 – Albright et al. v. Kellogg Company, C.A. No. 04-632 (E.D. Pa.). The Albright plaintiffs raised claims against Kellogg for its alleged failure to compensate manufacturing employees at its Lancaster, Pennsylvania manufacturing plant for time spent changing into and out of company-issued uniforms and other gear. The plaintiffs in Albright, after thirteen months of litigation, voluntarily dismissed their claims with prejudice. Kellogg’s employees at its Lancaster, PA and Rossville, TN plants are both represented by the Bakery, Confectionary, Tobacco Workers, and Grain Millers International (“Union”). The court found that the Union “[b]y representing the Lancaster employees who sued Defendant in 2004 for compensation for clothes-changing time, the Union acquired institutional knowledge of the defendant’s practice of noncompensation.” Thus, the court found that the union and, therefore, unionized manufacturing employees knowingly acquiesced to the practice of nonpayment for changing time.

The court further found that Kellogg relied in good faith on opinion letters issued by the United States Department of Labor that address the application of the Section 3(o). The most recent letter, issued in 2007, followed the Ninth Circuit’s decision Alvarez v. IBP, Inc., 339 F.3d 894 (2003) that held time spent donning and doffing of gear worn by meat production employees did not constitute changing clothes under Section 3(o). In that letter, however, the DOL reaffirmed its position that protective gear was excluded from compensable time under the FLSA notwithstanding the holding in Alvarez. The DOL explained that activities covered by Section 3(o) cannot be considered principal activities and do not commence the workday. It further explained that walking time following a Section 3(o) activity is not compensable unless preceded by a principal activity.

This blog entry was written by Tina Winston.

In support of its decision, the district court cited the Eleventh Circuit’s decision in Anderson v. Cagle’s Inc., 488 F.3d 945 (2007) that applied a broad definition of clothes under Section 3(o). While the Anderson decision acknowledged there may be limits to Section 3(o) based on the nature or purpose of the garments at issue, the Eleventh Circuit held that protective clothing worn by chicken processing plant employees fell within the statute’s exception. Conversely, the Ninth Circuit in Alvarez v. IBP, Inc., 339 F.3d 894 (2003) found that the donning and doffing of specialized protective gear worn by meat production employees did not constitute changing clothes under Section 3(o). The Andrako decision highlights the discord among the circuit and district courts. Last year, the United States Supreme Court declined to address the issue of when federal labor laws require employers to compensate its employees for time spent changing into and out of clothes raised in three separate cases - Anderson v. Cagle’s Inc., 488 F.3d 945 (11th Cir. 2007), Gormon v. Consolidated Edison Corp., 488 F.3d 586 (2nd Cir. 2007), Tyson Foods Inc. v. De Ascencio, 500 F.3d 361 (3rd Cir. 2007), denying certiorari 128 S.Ct. 2902 ( 2008).

Finally, regarding the plaintiffs’ claims seeking compensation for time spent walking to and from their workstations after changing in and out of company supplied clothes, the district court denied the defendant’s motion for summary judgment. U.S. Steel argued that because the time spent donning and doffing was not compensable time under Section 3(o), those activities could not trigger the beginning and end time under continuous workday theory. The court held that Section 3(o) excludes time spent changing clothing as compensable time, however, “it does not render such time any more or less integral or indispensable to an employee’s job.” Importantly, the court noted that its decision did not address whether such time was de minimis as the issue was not before the court.

The Andrako decision provides further support for employers that exclude time spent by employees donning and doffing company issued uniforms and gear under the terms or custom and practice under a collective bargaining agreement.

This blog entry was authored by Tina Winston.

This decision comes as a group of police officers from the City of Mesa, Arizona is currently pursuing an appeal to the Ninth Circuit of a similar decision issued in March 2008. That case, Bamonte et al. v. City of Mesa, in a decision issued by Judge Neil Wake, also found in favor of the employer, the City of Mesa. The Ninth Circuit is expected to rule on the Bamonte appeal later this year. To date, six district courts have addressed the issue of compensability for donning and doffing of police uniforms in extensive written opinions, with only one finding this activity compensable under the FLSA regardless of where it is performed.

The Impact: Although these cases arise in the context of police departments, they certainly have the potential for far wider reach. If any federal appellate court holds that time spent changing in and out of a uniform can be compensable regardless of where it takes place, employers that require employees to wear a uniform on the job can expect a significant number of similar claims to be made by employees in a variety of industries.

This blog entry was authored by Laurent Badoux.