6th Cir.: Although Changing Into PPE At Food-Processing Plant Is “Changing Clothes” and Excluded Under 203(o), It Is A Principle Activity And Begins The “Continuous Workday”

Franklin v. Kellogg Co.

This case was before the Sixth Circuit on appeal from the order at the court below granting Defendant summary judgment in all respects with regard to Plaintiff’s claims that she was entitled to be paid for changing into required personal protection equipment (“PPE”) each day, before she could perform their work on Defendant’s plant floor.  The Court affirmed the lower court’s holding that time spent changing into the PPE could be properly excluded by continued practice under 203(0), but remanded the case to determine whether there was significant time the that elapsed after the donning of the PPE, before Plaintiff was put “on the clock,” because such time was compensible under the “continuous workday” if it was not deemed de minimus.

The Court reasoned:

“B. Post-Donning/Pre-Doffing Walking Time

Franklin argues that if we conclude that her time spent donning and doffing the uniform and equipment is excluded under § 203(o), she is still entitled to compensation for her time spent walking between the locker room and the time clock, because those activities are “principal activities.” Under the “continuous workday” rule, “the ‘workday’ is generally defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’ “ IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (2004) (quoting 29 C.F.R. § 790.6(b)). In addition, “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is … covered by the FLSA,” and must be compensated. Id. at 37. Principal activities are those that are an integral and indispensable part of the activities which the employee is employed to perform. See Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

1. Does Exclusion Under § 203(o) Affect Whether an Activity is a Principal Activity?

One court recently explained that “[t]he courts have taken divergent views” on the issue of whether activities deemed excluded under § 203(o) may still constitute “principal activities.” In re Tyson Foods, Inc., 694 F.Supp.2d 1358, 1370 (M.D.Ga.2010). Some courts have concluded that time that is excluded under § 203(o) may still be a “principal activity,” because § 203(o) only addresses the compensability of the time, not whether it is integral and indispensable. See, e.g., id. at 1371 (“After considering both of these positions, the Court concludes that § 203(o) only relates to the compensability of time spent donning, doffing, and washing of the person and that it does not mean that § 203(o) tasks cannot be considered principal activities that start the continuous workday.”); Andrako v. U.S. Steel Corp., 632 F.Supp.2d 398, 413 (W.D.Pa.2009) (“Section 203(o) relates to the compensability of time spent donning, doffing, and washing in the collective-bargaining process. It does not render such time any more or less integral or indispensable to an employee’s job.”); Gatewood v. Koch Foods of Miss., LLC, 569 F.Supp.2d 687, 702 (S.D.Miss.2008) (“Although the act of ‘changing clothes’ itself is barred based on § 203(o) …, the activities that occur after changing into sanitary gear and before changing out of sanitary gear are not impacted by the defense.”); Figas, 2008 WL 4170043, at *20 (“[T]he character of donning and doffing activities is not dependent upon whether such activities are excluded pursuant to a collective-bargaining agreement.”). In contrast, some courts-including the district court presiding over the instant case-have concluded that “once an activity has been deemed a section 3(o) activity, it cannot be considered a principal activity.” Sisk v. Sara Lee Corp., 590 F.Supp.2d 1001, 1011 (W.D.Tenn.2008); see also Salazar v. Butterball, LLC, No. 08-cv-02071-MSK-CBS, 2009 WL 6048979, at * 14 (D.Colo. Dec. 3, 2009) (following Sisk); Hudson v. Butterball, LLC, No. 08-5071-CV-SW-RED, 2009 WL 3486780, at *4 (W.D.Mo. Oct. 14, 2009) (“Because time [plaintiff] spent sanitizing, donning, and doffing is excluded from hours worked under § 203(o), the walking time did not follow or precede a principal work activity, and therefore is not compensable.”). Although the latter position was consistent with the 2007 Opinion Letter, the June 16 Interpretation rejected that position and concluded that “clothes changing that is covered by § 203(o) may be a principal activity.” Compare 2007 Opinion Letter with June 16 Interp.

We agree with the courts that have taken the position that compensability under § 203(o) is unrelated to whether an activity is a “principal activity.” Accordingly, we must consider whether time spent donning and doffing the standard equipment and uniform is integral and indispensable to Franklin’s job.

2. Integral and Indispensable

Kellogg asserts that even though it requires its employees to wear these items, changing into them is not “integral and indispensable” under the FLSA. In Steiner, the Supreme Court concluded that changing into protective gear before beginning the shift and showering and changing out of the protective gear at the end of the shift was an integral and indispensable part of employment at a battery-manufacturing plant. 350 U.S. at 256 (“[I]t would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees.”) The Court did not address whether “changing clothes and showering under normal conditions” was integral and indispensable to the principal activity of work, and it did not explicitly hold that changing clothes and showering can only be integral and indispensable when the working environment was toxic or lethal. See id. at 249, 256. Nonetheless, at least one court applying Steiner has made that distinction. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 594 (2d Cir.2007). In Gorman, the Second Circuit held that donning and doffing of protective gear-helmet, safety glasses, and steel-toed boots-was not integral and indispensable to employment at a nuclear power plant. Id. It distinguished Steiner because “the environment of the battery plant could not sustain life-given the toxic substances in liquid, solid, powder, and vapor form (and in the dust of the air) that ‘permeate[d] the entire [battery] plant and everything and everyone in it.’ “ Id. at 593 (quoting Steiner, 350 U.S. at 249) (alterations in original). It interpreted Steiner narrowly for the proposition “that when work is done in a lethal atmosphere, the measures that allow entry and immersion into the destructive element may be integral to all work done there.” Id. However, under Gorman, when such a lethal environment is not present and the gear is not literally required for entry into the plant, donning and doffing gear is not integral.

The Second Circuit’s position appears to be unique. The Ninth and Eleventh Circuits have both interpreted Steiner less narrowly. For example, relying on 29 C.F.R. § 790.8(c), the Ninth Circuit explained that “ ‘where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work,’ the activity may be considered integral and indispensable to the principal activities.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir.2004), quoting Mitchell v. King Packing Co., 350 U.S. 260, 262-63 (1956) (holding that changing into and out of plant uniforms was integral and indispensable to the principal activities because the employer required its employees to wear the uniforms and doing so was performed for the benefit of the company); see also Alvarez, 339 F.3d at 902-03 (“To be ‘integral and indispensable,’ an activity must be necessary to the principal work performed and done for the benefit of the employer.”). Similarly, the Eleventh Circuit held that the following three factors are relevant to the issue of whether an activity is integral and indispensable: “(1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his or her duties; and whether the activity primarily benefits the employer.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344 (11th Cir.2007) (concluding that time spent going through security screening made mandatory by the FAA was not integral and indispensable because it was not for the benefit of the employer). We follow the reasoning of Ballaris and Bonilla.

Under the broader interpretation of integral and indispensable, donning and doffing the uniform and equipment is both integral and indispensable. First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, unlike the plaintiffs in Steiner, it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, considering these three factors, we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity. See IBP, Inc., 546 U.S. at 37 (“[A]ny activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity.’ ”) Accordingly, under the continuous workday rule, Franklin may be entitled to payment for her post-donning and pre-donning walking time. Because there are questions of fact as to the length of time it took her to walk from the changing area to the time clock and whether that time was de minimis, however, we reverse and remand to the district court for further consideration of this issue.”

To read the entire opinion, click here.

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Filed under Donning and Doffing, Work Time

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