Fourth Circuit Affirms Judgment that Donning and Doffing Activities Are Compensable "Work" Under the FLSA

Posted by Greg Mersol on June 14, 2011

Fashion icon Mark Twain once said, “Clothes make the man.  Naked people have little or no influence on society.”  And, indeed, employers agree, as many of them require their employees to don attire befitting their industrial pursuits.  Mountaire, a company engaged in the slaughter, processing and distribution of chicken and chicken parts, is no exception.  Its employees are required, by company policy and federal regulations, to don various items of protective gear, including smocks, steel-toed rubber boots, "bump caps," gloves and other items, before commencing work on Mountaire’s production line. 

In 2006, not wanting to be slaves to fashion, employees at Mountaire's Delaware plant filed a collective action under the FLSA alleging that the time spent donning and doffing their protective gear should be compensable as "work.” 

Mountaire’s production line employees typically donned their protective gear at the plant and were required to sanitize it with sanitation solution.  Although not mandated by Mountaire's policies (and in blatant disregard of the fashion credo, "when in doubt, wear red"), employees typically sanitized and doffed their protective gear before taking their meal break to permit them to eat without blood and raw chicken parts on their persons.  They were again required to don their protective gear before returning to the production floor.  At the end of each shift, employees doffed their gear and left their smocks to be laundered by the plant. 

After the employees filed suit, Mountaire changed its policy to allow employees to take their smocks home.  Shockingly, despite the change in policy, employees found no occasion to don their fashionable chicken smocks while off the clock, and typically refrained from taking them home.

The District of Maryland certified the employees’ suit as a collective action under the FLSA and, in March 2009, conducted a bench trial.  The court concluded that time spent donning and doffing protective gear at the beginning and end of a work shift and at the employees’ unpaid meal break was compensable as “work” under the FLSA. 

On appeal, in Perez v. Mountaire Farms, Inc.pdf., Case No. 09-1917 (4th Cir. 2011), the Fourth Circuit applied the U.S. Supreme Court’s rule that although employers need not compensate employees for “activities which are preliminary to or postliminary to [the] principal activity or activities” of a job, if such an activity is an “integral and indispensable part of the [employee’s] principal activities” it is compensable under the Portal-to-Portal Act.  29 U.S.C. §§ 251-62; Steiner v. Mitchell, 350 U.S. 247, 256 (1956).  The court further applied the Ninth Circuit’s holding in Alvarez v. IBP, Inc., 339 F.3d 894, 902-903 (9th Cir. 2003), aff’d, 546 U.S. 21 (2005), that an activity is “integral and indispensable” if the activity is:  1) “necessary to the principal work performed”  and 2) “done for the benefit of the employer.” 

Applying the foregoing standards, the Fourth Circuit partially affirmed the district court’s ruling and found that doffing and donning activities at the beginning and end of the employees’ shifts were “integral and indispensable” to the principal activity of chicken processing and, therefore, constituted compensable “work” under the FLSA.  In reaching its conclusion, the Fourth Circuit relied on the district court’s finding that the doffing and donning activities were “necessary to the principal work performed” because safety and sanitary concerns required it.  The Fourth Circuit also relied upon the district court’s finding that the doffing and donning activities were “done for the benefit of the employer” because, although the protective gear benefitted the employees by protecting them from workplace hazards (and, in this writer’s opinion, conferring upon them the cache of post-apocalyptic couture), it primarily benefitted Mountaire by protecting its products from contamination, keeping workers’ compensation payments down, keeping missed time to a minimum, and shielding the company from pain and suffering payments.  The court further concluded that Mountaire’s new policy of permitting employees to take their smocks home did not change the outcome, as the district court found that where Mountaire provided hampers for dirty smocks and clean smocks free of charge, the change in policy was “illogical” and “impractical”.

The Fourth Circuit abided by precedent in Sepulveda v. Allen Family Foods, Inc, 591 F.3d 209 (4th Cir. 2009), in holding that time spent donning and doffing before and after meal periods was non-compensable as such activities were part of a “bona fide meal period” and, alternatively, de minimis. (The court acknowledged that it if had not been bound by precedent, it would have held that these activities were compensable as work).

The Bottom Line:  It is becoming increasingly de rigeur to compensate employees for time spent doffing and donning work-related protective clothing where the time to do so is more than de minimis, as such activity is typically for the primary benefit of the employer.

Authorship Credit: Dawn Kennedy

Juries Hand Employers Class Action Wage and Hour Victories

Posted by Greg Mersol on June 09, 2011

Jury trials of employment class actions are rare.  If a case is certified, oftentimes the risk of going forward is simply too great for the employer, and it settles.  Three recent cases, however, reflect that in those few class action cases that are tried, a plaintiff's verdict is far from a certainty, particularly in the wage and hour arena.

Most recently, in Johnston v. The Rawlings Co.LLC, Case No. 08-0800 (Oldham Cty., Kentucky, Circuit Court), a class of 360 medical claims examiners sought $12 million arising out of their alleged misclassification as exempt employees.  Following a 3-week trial in Kentucky state court, the jury returned a defense verdict on May 27, 2011.

One day earlier, in Lopaz v. Tyson Foods, Inc., Case No. 8:06-CV-459 (D. Neb), a class of hourly meat processing employees contended that they were not properly paid for all hours of work.  They specifically challenged a "gang time" system used by the employer that they claimed deprived them of pay for donning and doffing, sanitizing equipment, and similar duties.  On May 26, a federal jury returned a verdict in favor of the employer.  What makes this case especially interesting is that the employer had previously lost such a case in Kansas earlier in 2011 and had settled a similar case with the United States Department of Labor.  Further, the attorneys for the plaintiffs had previously recovered a $32 million verdict in a wage and hour case against Family Dollar Store.

Earlier this year, in Henry v. Quicken Loans (E.D. Mich), a group of mortgage loan officers brought suit against Quicken Loans, contending that they were misclassified as administrative exempt employees and were owed overtime.  They argued, essentially, that they were actually salespeople, and lacked any significant discretionary authority.  They also relied on a 2010 U.S. Department of Labor interpretation that stated that such employees most likely were not administratively exempt.  Following a four-week trial, the jury returned a defense verdict on March 14, 2011, and also returned jury interrogatories reflecting its finding that the employees performed duties that were administratively exempt.

The Bottom Line:  Class action trials involve very high stakes, but recent history shows that employers, as well as plaintiffs, may prevail.

Court Finds That Labor Contracts Preempt State Law Wage and Hour Claim

Posted by Greg Mersol on November 11, 2010

Donning and doffing claims?  Two unions? Two contracts?  State law wage and hour claims?  Preemption? Removal jurisdiction?  Many of the thorniest wage and hour issues have made their way into a single case.  In Curry v. Kraft Foods Global.pdf (N.D. Ill. Oct. 25, 2010), the court had to resolve all of these issues in a case involving approximately 200 employees, and its analysis may be instructive on cases of considerably less complexity.

The Curry case was a class action arising out of a food plant operated by Kraft in Naperville, Illinois.  Employees at the plant were represented by either of two unions.  The plaintiffs sought to be paid for time spent donning and doffing safety gear.   Apparently concerned about section 3(o) of the FLSA, 29 U.S.C. section 203(o), which provides that the union and management can agree to exclude time spent "changing clothes" for hours worked, they brought suit in state court under Illinois law.  The Illinois version of the FLSA contains no section 3(o) equivalent.  Although they asserted no federal claim, and probably did so deliberately, the defendant removed the case to federal court on the grounds that the claims were preempted by the FLSA and Section 301 of the Labor Management Relations Act, 29 U.S.C. section 185.  The plaintiffs moved the court to remand the case to state court.

This case did not present any issue of a conflict between the FLSA's enforcement mechanisms and those under state law because the plaintiffs asserted no FLSA claim.  The employer argued instead that because Illinois law contained no counterpart to section 3(o), it was preempted by federal law.   The court rightly rejected this argument because section 18(a) of the FLSA, 29 U.S.C. section 218(a) provides that states can exceed the overtime requirements of federal law.  Thus, the FLSA would have permitted Illinois law to provide substantive benefits more generous to the employees.

The more interesting part of the decision was the court's analysis of the Section 301 preemption issue.  Essentially, the employer argued that issues of contract interpretation were largely intertwined with consideration of the employees' claims, even though the contract itself was largely silent on the issue of whether doffing and donning time was time worked.  The district court agreed, specifically noting provisions of the contracts requiring the payment of wages for hours of "work" and also those relating to the different rates of pay for different employees.  The court concluded that the plaintiffs' claims required that it "interpret, not merely reference, the CBA."  The court therefore found that the claims were so preempted that the LMRA provided sufficient jurisdiction on which the case could be removed, even though the complaint on its face stated no federal claim.  Interestingly, while the court did not say so explicitly, the effect of its ruling was to supplant a state law statutory wage and hour claim with a federal claim regarding the appropriate construction of the relevant collective bargaining agreements.

The bottom line:  The FLSA most likely will not preempt a state law claim that exceeds its substantive requirements, but in the case of unionized employees, their state law claims my be preempted by section 301 and governed by the terms of the collective bargaining agreement.  Employers confronted with state law wage and hour claims brought by unionized employees should consider the issue of Section 301 preemption.

Sixth Circuit Panel Rejects DOL 'Clothes Changing' Interpretation

Posted by David Grant on September 08, 2010

In another twist to the often-litigated question of the compensability of mandatory workplace “clothes changing” under the Fair Labor Standards Act (FLSA),  the United States Court of Appeals for the Sixth Circuit (by a 2-1 vote) concluded that union-represented employees at a Kellogg plant in Tennessee were not entitled to be paid for the time they spent “donning and doffing” mandatory food safety uniforms (i.e. pants, logoed shirts, and slip-resistant shoes) and protective equipment (e.g. hair nets, safety glasses, ear plugs, bump caps, and beard nets where necessary).  The court of appeals, however, did not hand Kellogg a complete victory.  It remanded the case and ordered the district court to consider whether employees should be paid for the time they spend walking to and from their locker-room changing area and a time clock. Franklin v. Kellogg Co.pdf., No. 09-5880 (6th Cir. Aug. 31, 2010)

A brief bit of background: Section 3(o) of the FLSA provides that time spent in changing clothes at the beginning or end of a work day is not working time and need not be paid for if it has been excluded by the express terms of or by custom and practice under a bona fide collective-bargaining agreement.  Rescinding opinion letters issued by the Wage and Hour Division (DOL) during the Bush Administration and reverting back to Clinton Administration opinion letters, the DOL recently issued and trumpeted an “Interpretation” in which it opined that “protective equipment worn by employees that is required by law, the employer, or due to the nature of the job” cannot be considered “clothes” within the meaning of Section 3(o). Administrator's Interpretation.pdf, No. 2010-2, at 4 (June 16, 2010).

The Sixth Circuit opinion is noteworthy in several respects:

  1. The court refused to follow the 2010 DOL Interpretation and agreed with Kellogg that in ”the context of the workday,” the Company’s protective equipment provided “covering for the body” and could properly be encompassed within the definition of clothing under Section 3(o).  Slip op. at 12. The court declined to accord deference to the DOL Interpretation, noting the agency’s fluid and “repeatedly” changed position on the issue since 1997. Id. at 11. 
  2. In conjunction with its decision on the meaning of “clothes,” the Sixth Circuit concluded that Section 3(o) is not an FLSA “exemption,” but an “exclusion from the definition of work.” Slip op. at 8.  The plaintiff, therefore, not the employer, has the burden of proving that donning and doffing time should not be excluded and must be compensated under the FLSA. 
  3. Concerning the issue of the existence of a “custom or practice” of not compensating Kellogg’s employees for clothes changing time, the Sixth Circuit upheld the district court’s decision on summary judgment that there was such a nineteen-year custom or practice despite the existence of some evidence that the Union was unaware that its employees could be paid for such donning and doffing activity. The relevant inquiry from the Sixth Circuit’s standpoint, however, was not whether the Union or its employees knew that there was a “possible entitlement to compensation,” but whether they knew that the time was not being compensated.  Here the Union and the employees knew that Kellogg did not pay for any donning and doffing activity.  Slip op. 16-17.  (Judge Clay dissented, finding that there were questions of fact whether “the Union knowingly acquiesced to nonpayment for donning and doffing time….” Slip op. at 22-26). 
  4. Although Kellogg prevailed on the critical clothes changing issues, the Sixth Circuit counter-intuitively concluded, consistent with the current  DOL position, that the noncompensability of this activity under Section 3(o) “is unrelated to whether an activity is a ‘principal activity’” that can start an employee’s “continuous workday” under the FLSA. Slip op. at 18.  The court went on to say that donning and doffing time and activity at the Kellogg plant primarily benefited the Company, not the employees, was “integral and indispensable” under the FLSA,  and could trigger a requirement that walking time between the changing area and the time clock was compensable. Slip op. at 20-21. The Sixth Circuit sent this issue back to the district court because of outstanding factual questions about how long this walking time lasted and whether that time was “de minimis” under the FLSA. Id. at 21. 

The bottom line: The Sixth Circuit’s decision highlights the myriad issues attendant to clothes changing and corollary “preliminary and postliminary” activity that continue to plague employers and provide fertile ground for plaintiffs’ lawyers.  More likely than not, the Sixth Circuit will be asked to rehear this case en banc, with DOL amicus participation and a petition for Supreme Court review probable thereafter to resolve the deepening divergence on these issues in the courts of appeal.

Look for more in our blog on this clothes changing conundrum and the current court landscape in the weeks ahead.