Wage and Hour Law Update : Wage & Hour Lawyer & Attorney : Jackson Lewis Law Firm : Minimum Wage, Overtime & Service Contracts

Courts continue to analyze the compensability of preliminary and postliminary time: time spent before or after a non-exempt employee’s shift on certain tasks related to the performance of the employee’s job. Many suits allege the time spent “donning and doffing” of personal protective equipment (“PPE”) related to dangerous work environments (slaughter houses, power plants, etc.) must be compensated as being “integral and indispensible” to the performance of the jobs in question. In a recent opinion, while Magistrate Judge George H. Lowe of the Northern District of New York observed that this legal issue has “troubled courts for more than sixty years,” the Court ultimately determined that former employees of the Massena West aluminum smelting facility operated by Alcoa were not entitled to compensation for time spent putting on and removing “flame retardant shirts and pants, metatarsal (or steel-toed) boots, spats, hard hats with snoods that cover the back of the neck, and safety glasses.” Adams v. Alcoa, Inc., 2011 U.S. Dist. LEXIS 110718 (N.D.N.Y Sept. 27, 2011)

The Adams plaintiffs worked in the potroom and ingot departments of the plant, jobs which required them to be near molten metal and wear the flame retardant shirts and pants, steel-toed boots, spats and hard hats. Alcoa provided the Plaintiffs with extra uniforms, laundered those uniforms, and permitted employees to don/doff the uniforms at home, or in a facility at Massena West. Magistrate Judge Lowe, relying on the Second Circuit’s “extremely narrow” interpretation of the “integral and indispensable” requirement in a factually similar case, along with a Department of Labor advisory memorandum addressing when donning and doffing time is compensable, ruled that the time spent by Plaintiffs putting on PPE was neither “integral” (which required that PPE be necessary to enter a “lethal atmosphere”) nor “indispensable” (which, under the DOL guidance, required that the donning and doffing by necessity occur on premises, not at home). Id. at * 16-27 citing Gorman v. Consolidated Edison Corp., 488 F.3d 586 (2d Cir. 2007). 

The scope of the compensable workday for non-exempt employees is a legal concept that is devoid of clairty, and DOL and court guidance on the issue has not always been consistent. Employers must assess what state and federal law require in their jurisdictions with respect to the compensability of all tasks performed by the employee at the employer’s behest.

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An ongoing issue in wage and hour litigation is the compensability of changing time – the time spent putting on and removing garments and protective material related to the performance of an employee’s duties. Earlier this month, the Court of Appeals for the Tenth Circuit affirmed the District Court’s grant of summary judgment to defendant in Salazar v. Butterball, LLC, holding that the donning and doffing of personal protective equipment at a turkey processing plant was non-compensable “changing clothes” time under the Fair Labor Standards Act, Section 3(o). See Salazar v. Butterball, LLC, No. 10-1154, 2011 U.S. App. LEXIS 13653 (10th Cir. July 5, 2011). A Jackson Lewis team led by Atlanta partner Steve Munger represented Butterball in this matter.

Plaintiffs in Salazar claimed that defendants should have paid them for time spent donning and doffing required frocks, aprons, gloves, boots, hard hats, safety glasses, knife holders, and arm guards, before commencing and after completing their shifts. The District and Circuit courts found that such time was non-compensable since the employer maintained a “custom and practice” of not compensating such time within the meaning of Section 3(o). In reaching its conclusion and affirming the court below, the Circuit reiterated that time spent changing clothes at the beginning or end of each workday can be excluded from the number of hours worked under Section 3(o) where a collective bargaining agreement’s “express terms or custom or practice” is not to compensate for such time. Although neither the CBA nor written company policy expressly stated that such time would not be paid, the employer did have a “custom or practice,” the Court held, since the employees’ union never sought to negotiate the pre-existing practice during its collective bargaining negotiations.

The plaintiffs argued that the protective equipment did not constitute “clothes” under applicable U.S. Department of Labor interpretive guidance. In its most recent pronouncement on this issue, the DOL stated that garments “designed to protect against workplace hazards, serve[] specialized functions, and required by the employer or by law” are not “clothes.” The appeals court disagreed, finding that the DOL’s interpretive guidance was not entitled to deference since the DOL’s position had changed repeatedly over the years. The Court found that the equipment fell within the broad dictionary definition of “clothes,” which includes all garments and accessories that are worn by an individual. The Court also held that, unlike the white-collar exemptions to overtime, a court is not constrained to narrowly interpret the section 3(o) exemption.

Unionized employers who require their employees to don and doff protective garments, equipment, and other accessories must continue to closely analyze the applicability of the Section 3(o) exemption in their jurisdiction, under federal and state law. The holding in Salazar is certainly a positive development for employers, especially employers within the Tenth Circuit (the federal circuit covering Oklahoma, Kansas, New Mexico, Colorado, Utah and Wyoming).

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As discussed here, the FLSA contains a provision relating to the compensability of time spent donning and doffing uniforms, when the compensability of such time is addressed in a collective bargaining agreement. 29 U.S.C. § 203(o). However, even where a unionized employer through a collective bargaining agreement is not required to pay for such time, if the time is otherwise compensable under state law, the FLSA is no defense, held Judge Easterbrook of the Seventh Circuit this week. Spoerle v. Kraft Foods Global, Inc., 2010 U.S. App. LEXIS 15960 (7th Cir. Wis. Aug. 2, 2010).

Spoerle concerns the compensability of time spent putting on and taking off “safety gear, such as steel-toed boots and hard hats, plus a smock that keeps other garments clean” as well as hair nets and beard nets” at an Oscar Mayer plant in Wisconsin. Id. at * 2. The Court noted that it “takes a few minutes at the start of every day to put these items on, and a few more at day's end to take them off.” Id. Kraft Foods and the union agreed that this time is not compensable. Id. at * 2-3. However, Kraft Foods also conceded within the context of Spoerle that, but for the existence of a CBA, the time in question would be compensable under Wisconsin’s state wage law. 

As observed by the district court and reiterated by the Seventh Circuit, 29 U.S.C. § 218(a) of the FLSA states:

No provision of this chapter . . . shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter …. No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter.

This provision codifies an unequivocal proposition: the FLSA does not prevent states from enacting wage laws which provide greater rights to employees. The Court also specifically noted that 203(o) by its plain language is limited to calculating hours worked “for the purposes of sections 206 and 207 of this title.” Id. at * 5. Finally, as explained by the Court, the existence of the CBA did not itself preempt the state wage law because state rules that disregard, rather than interpret, collective bargaining agreements are not preempted by federal labor policy. Id. citing Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988).

Spoerle highlights the need for every organization to develop a full and complete understanding of both the FLSA and all relevant state wage and hour laws. Employers with multi-state operations must be particularly careful to mind the niceties of individual state laws.

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