Employees Not Paid for Donning and Doffing or Walking to Work Stations OK Pursuant to Union Contract and FLSA § 203(o)

There is no definition of “work” in the FLSA. Generally, the workday runs from the first to the last “principal activity” of the day. Here, plaintiffs worked in a facility that produces frozen food. Under the terms of their collective bargaining agreement, they were required to change into a uniform after arriving at the facility at the start of each day and remove it before leaving work at the end of the day.

The employees sued their employer claiming that they should be paid for the time they spent changing into and out of their uniforms and walking between changing stations and their respective work stations. Normally this is a slam dunk win for employees – but not this time.

The district court ruled that employees were not owed any money for time spent donning and doffing if that time is treated as non-work time by a collective bargaining agreement. However, it incorrectly decided that the employees should have been paid for time spent walking to and from their work stations because that was a “principal activity” that triggered the start of their workday.

On appeal, the Eighth Circuit agreed that the employees should not be paid for time donning and doffing because that time had been treated by the union contract as non-work time. But, the Eighth Circuit reversed the district court regarding time spent walking to and from their work stations. The Eighth Circuit examined the language of § 203(o) which states that clothes changing may be excluded from “the hours for which an employee is employed,” and held that time excluded under that provision could not also meet the definition of principal activity, which is defined as any activity the employee “is employed to perform.” Did you follow me there?

Now for the juicy part.

The Eighth Circuit refused to give any weight to the Department of Labor’s 2010 “Administrator’s Interpretation,” which held that an activity excluded under § 203(o) could start the continuous workday. The court described the DOL’s position as having “changed with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter,” and stated that these policy shifts “entitled it to considerably less deference than a consistently held agency view.”

Yeah, sounds like the DOL I deal with. Now, if only the NLRB followed this logic. Kudo’s to the Eighth Circuit for calling it like it is.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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