Compensability of Time Spent Donning and Doffing and Pre and Post-Shift Activities Continues to Divide the Courts

The question often arises whether the time spent "donning and doffing" clothes and personal protective equipment is compensable time.  Federal courts are divided over this issue.  In particular, the courts disagree about the meaning of "clothes" as used in Section 203(o) of the Fair Labor Standards Act.  Under this Section, certain employees do not have to be compensated for changing their "clothes."  Courts interpret the meaning of clothes differently.  While some courts have held that it includes both uniforms and personal protective equipment, other courts have held that personal protective equipment is not included.  The Supreme Court has not addressed the issue, and recently refused to review a lower court's ruling that personal protective equipment is included within Section 203(o).  Sepulveda v. Allen Family Foods Inc.  While the Supreme Court declined to find a split in the Appellate Courts, the reality remains that federal courts interpret the scope of the exclusion under Section 203(o) differently.

Recently, another district court weighed in on the definition of clothes and related issues.  In McDonald v. Kellogg Co., many of Kellogg's hourly employees at its Kansas City bakery facility had to don company uniforms and personal protective equipment, including hairnets, ear plugs, safety glasses and beard guards before walking to their work stations.  After their shift, they had to doff the uniforms and personal protective equipment.  Kellogg did not pay employees for the time they spent donning, doffing, or walking to and from their work stations.  While Kellogg and the employees were parties to a collective bargaining agreement, the agreement was silent on whether the time spent donning and doffing was compensable time.

In its opinion, the district court addressed three issues:  1) Whether personal protective equipment is included within the definition of "clothes" under Section 203(o); 2) Whether the parties had a "custom or practice" that the employees would not be compensated for changing clothes, even though the collective bargaining agreement was silent; and 3) Whether donning and doffing clothes triggered the start of the employees' workday, even if they were non-compensable activities.

As an initial matter, the court held that personal protective equipment is included within the meaning of "clothes" under Section 203(o), and thus the time spent donning and doffing such clothing is not compensable.  Following decisions by the Fourth, Sixth, Seventh and Eleventh Circuits, the court held that "clothes" includes not only uniforms but also personal protective equipment such as the safety glasses and ear plugs at issue, specifically rejecting the Department of Labor's 2010 Opinion Letter that reached the opposite conclusion.  In refusing to defer to the DOL, the court noted that the agency had switched its position on the issue at least twice in the past decade.  The court also refused to follow the employee-friendly Ninth Circuit because its position (which is similar to the DOL's) contradicts all of the other Circuits that have addressed the issue.

The court then analyzed whether the exclusion in Section 203(o) applied to the facts of the case.  The court held that although the collective bargaining agreement was silent on the issue, the parties had a "custom or practice" that the employer would not pay the employees for changing clothes.  In so finding, the court relied on the fact that for several years, the employees were not paid for donning and doffing yet they did not file a grievance or complain.  This showed that they knew of and acquiesced to the employer's practice of considering that time not compensable, and therefore Section 203(o) applied.

However, the court's analysis did not end there.  The court also looked to whether the time spent donning and doffing the personal protective equipment "triggered" the start of the workday and thus the start of the "time clock."  The court held that when the employees changed their clothes it triggered the start of the workday because the activity was integral and indispensable to the work they performed, and therefore walking to and from their workstations would generally be compensable time.  However, the court did not decide whether Kellogg had to compensate the employees for the time, because neither party had briefed whether the time was de minimis (i.e., negligible) under the law.  Consequently, the court reserved the final determination for a later date.  

This case reminds employers to be aware of the precedent in their jurisdiction when deciding whether the time employees spend donning and doffing personal protective equipment and uniforms is compensable.  Furthermore, even if the time spent donning and doffing is not compensable under Section 203(o), employees changing their clothes might trigger the continuous workday rule, resulting in compensable time for the activities employees perform after donning and before doffing their clothes. 

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