In another setback for unionized non-exempt FLSA plaintiffs claiming as compensable time spent: 1) changing into work-related gear; and 2) traveling to their site of work from the changing point (typically in a production facility such as a factory or slaughterhouse), the Court of Appeals for the Seventh Circuit has ruled that U.S. Steel was not required to compensate employees at its steel works in Gary, Indiana for such time. Sandifer v. United States Steel Corp., 2012 U.S. App. LEXIS 9302 (7th Cir. May 8, 2012).
The Seventh Circuit concluded, as many other courts have, that 29 U.S.C. § 203(o) operated to render the changing time at the unionized facility non-compensable, because the “custom or practice under [the employees’] bona fide collective-bargaining agreement” did not require that it be compensated. In so ruling, the Court rejected plaintiffs’ assertion that the “exclusion” under Section 3(o) should be analyzed using the “narrow” construction applicable to exemptions from FLSA protection. The Seventh Circuit joins other courts, such as the Tenth Circuit in Salazar v. Butterball, LLC, 644 F.3d 1130 (10th Cir. 2011), in upholding this view of the preliminary process associated with work-related garments, oftentimes referred to as personal protective equipment or “PPE.” The court went further and held that because the (non-compensable) act of changing clothes did not trigger the start of the workday under the Portal-to-Portal Act, the subsequent time spent traveling to the location where work would actually begin, i.e. the steel works, also was not compensable.
“Courts are still wrestling with the compensability of pre-shift time spent on so-called PPE and other preliminary activities,” observed Jackson Lewis Partner and donning-and-doffing litigation expert Stephen X. Munger. “Even once litigation has subsided, unionized employers may find themselves back at the bargaining table discussing compensability of this same time, which often is not addressed in CBAs even today.”
Manufacturers and other employers with a large, hourly production workforce must analyze these issues carefully.