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In another twist to the often-litigated question of the compensability of mandatory workplace &ldquo;clothes changing&rdquo; under the Fair Labor Standards Act (FLSA),&nbsp; 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 &ldquo;donning and doffing&rdquo; mandatory food safety uniforms&nbsp;(i.e. pants, logoed shirts, and slip-resistant shoes) and protective equipment (e.g.&nbsp;hair nets, safety glasses, ear plugs, bump caps, and beard nets where necessary).&nbsp; The court of appeals, however, did not hand Kellogg a complete victory.&nbsp; 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.&nbsp;<a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2010/09/Franklin-v.-Kellogg-Co.pdf">Franklin v. Kellogg Co.pdf</a>., No. 09-5880 (6th&nbsp;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.&nbsp; 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 &ldquo;Interpretation&rdquo; in which it opined that &ldquo;protective equipment worn by employees that is required by law, the employer, or due to the nature of the job&rdquo; cannot be considered &ldquo;clothes&rdquo; within the meaning of Section 3(o).&nbsp;<a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2010/09/Administrators-Interpretation.pdf">Administrator's Interpretation.pdf</a>, No. 2010-2, at 4 (June 16, 2010). The Sixth Circuit opinion is noteworthy in several respects: <ol> <li>The court refused to follow the 2010 DOL Interpretation and agreed with Kellogg that in &rdquo;the context of the workday,&rdquo; the Company&rsquo;s protective equipment provided &ldquo;covering for the body&rdquo; and could properly be encompassed within the definition of clothing under Section 3(o).&nbsp; Slip op. at 12. The court declined to accord deference to the DOL Interpretation, noting the agency&rsquo;s fluid and &ldquo;repeatedly&rdquo; changed position on the issue since 1997.&nbsp;Id. at 11.&nbsp; </li> <li>In conjunction with its decision on the meaning of &ldquo;clothes,&rdquo; the Sixth Circuit concluded that Section 3(o) is not an FLSA &ldquo;exemption,&rdquo; but an &ldquo;exclusion from the definition of work.&rdquo; Slip op. at 8.&nbsp; 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.&nbsp; </li> <li>Concerning the issue of the existence of a &ldquo;custom or practice&rdquo; of not compensating Kellogg&rsquo;s employees for clothes changing time, the Sixth Circuit upheld the district court&rsquo;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&rsquo;s standpoint, however, was not whether the Union or its employees knew that there was a &ldquo;possible entitlement to compensation,&rdquo; but whether they knew that the time was not being compensated.&nbsp; Here the Union and the employees knew that Kellogg did not pay for any donning and doffing activity.&nbsp; Slip op. 16-17.&nbsp; (Judge Clay dissented, finding that there were questions of fact whether &ldquo;the Union knowingly acquiesced to nonpayment for donning and doffing time&hellip;.&rdquo; Slip op. at 22-26).&nbsp; </li> <li>Although Kellogg prevailed on the critical clothes changing issues, the Sixth Circuit counter-intuitively concluded, consistent with the current&nbsp; DOL position, that the noncompensability of this activity under Section 3(o) &ldquo;is unrelated to whether an activity is a &lsquo;principal activity&rsquo;&rdquo; that can start an employee&rsquo;s &ldquo;continuous workday&rdquo; under the FLSA. Slip op. at 18.&nbsp; 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 &ldquo;integral and indispensable&rdquo; under the FLSA,&nbsp; 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 &ldquo;de&nbsp;minimis&rdquo;&nbsp;under the FLSA.&nbsp;Id.&nbsp;at 21.&nbsp; </li> </ol> The bottom line:&nbsp;the Sixth Circuit&rsquo;s decision highlights the myriad issues attendant to clothes changing and corollary &ldquo;preliminary and postliminary&rdquo; activity that continue to plague employers and provide fertile ground for plaintiffs&rsquo; lawyers.&nbsp; 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.

Sixth Circuit Panel Rejects DOL “Clothes Changing” Interpretation