Sixth Circuit Rejects DOL's Interpretation Of "Changing Clothes" In Determining Whether Donning And Doffing Time Is Compensable

Sixth Circuit Rejects The DOL’s Interpretation Of “Changing Clothes”

In Determining Whether Donning And Doffing Time Is Compensable

On August 31, 2010, the Sixth Circuit held in Franklin v. Kellogg Company that time spent donning and doffing uniforms and protective gear before and after shifts is not compensable under Section 203(o) of the Fair Labor Standards Act (“FLSA”), where the employees are subject to a collective bargaining agreement (“CBA”) and it is the employer’s custom or practice not to compensate employees for the time spent donning and doffing such equipment. In reaching this holding, the court rejected the Department of Labor’s position that the phrase “changing clothes” in Section 203(o) does not include protective gear.

The case involved hourly employees who worked at Kellogg’s plant in Rossville, Tennessee, which produces frozen breakfast foods. Since 1989, these employees have been represented by the Local 400-G American Federation of Grain Millers International AFL-CIO (“Union”), which negotiated a series of CBAs that were updated approximately every three years.

The named plaintiff, on behalf of herself and 243 other plaintiffs who opted into the collective action, brought suit against Kellogg for time spent donning and doffing company-provided uniforms, slip-resistant shoes, hair nets, and where necessary, beard nets, safety glasses, ear plugs, and bump caps. Kellogg required employees to change into this gear at the plant before their shifts and remove the gear before leaving, so the uniform and equipment could be washed at the plant. Kellogg had never paid its hourly employees for the time spent donning and doffing the uniform and equipment or the time spent walking to and from the locker room and the time clock. Although Kellogg had an established history of nonpayment for time spent donning and doffing the uniform, the CBA had no provision specifically addressing this policy.

The case turned largely on the application of Section 203(o) of the FLSA, which provides that “there shall be excluded [from the calculation of hours worked] any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”

The court first resolved which party bore the burden of proof on the applicability of Section 203(o). The court noted that the FLSA contains a provision entitled “Exemptions” at Section 213, under which the employer has the burden of proving that the employee is exempt, and that Congress declined to place the provision found in Section 203(o) in Section 213. The Sixth Circuit further noted that the Section 213 exemptions are distinguishable because they relate to the total exclusion of a particular class of workers (such as administrative or executive employees), while Section 213 excludes particular activities. Based on the foregoing, the court held that the plaintiffs bore the burden of demonstrating that Section 203(o) did not apply.

The Sixth Circuit then considered whether the donning and doffing of Kellogg’s uniform and protective gear constitutes “changing clothes.” The court considered the DOL’s recent June 16, 2010 Administrative Interpretation in which the DOL opined that “changing clothes” does not apply to putting on or taking off protective equipment, but only to apparel. Although courts typically show deference to the DOL’s interpretation of the FLSA, the Sixth Circuit rejected the DOL’s interpretation in this case, noting that the DOL had changed its position several times over the years. The Sixth Circuit also found that the DOL’s approach conflicted with the plain language of Section 203(o). Consequently, the Sixth Circuit found that donning and doffing standard safety equipment does fall within the ambit of Section 203(o). The court noted, however, that heavier protective equipment than what was at issue in this case may not be clothing within the meaning of Section 203(o).

Based on the foregoing findings, as well as its finding that the Union knew about Kellogg’s practice of not paying for donning and doffing time, the Sixth Circuit held that Section 203(o) was applicable and the time employees spent donning and doffing protective gear and uniforms was not compensable. The court held, however, that time spent walking to and from the locker room to the time clock to clock in and out may constitute compensable time, depending on whether such time is de minimus.

While this holding represents good news for employers with unionized workforces, these employers should bear in mind that the Franklin case was fact-specific, and they should therefore continue to perform periodic audits of their payroll practices, including payment for donning and doffing and walking to and from changing areas, to ensure compliance with the FLSA.