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).