On August 30, 2013, in Adair v. ConAgra Foods, Inc., the U.S. Court of Appeals for the Eighth Circuit ruled that time spent by unionized employees walking to and from time clocks after donning and doffing protective clothing was not a “principal activity” for which compensation was required under the Fair Labor Standards Act (FLSA). The Eighth Circuit’s ruling adds to an existing circuit split on whether time spent changing clothes, which is otherwise excluded from compensation under section 203(o) of the FLSA, is still a “principal activity” that starts the continuous workday and triggers compensation requirements. Section 203(o) excludes from compensation time spent changing clothes provided that time has been excluded from compensation "by the express terms of or by custom or practice under a bona fide collective-bargaining agreement."

Like the Eighth Circuit, the Seventh Circuit Court of Appeals, in Sandifer v. United States Steel Corp., held that where time spent changing clothes was not compensable under section 203(o) of the FLSA it could not be a principal activity that required compensation for time spent walking between the changing area and work stations. The Supreme Court granted certiorari and will hear oral argument in Sandifer on November 4 to consider the meaning of “clothes” for purposes of exclusion from compensation under the FLSA, but the Court declined to address the principal activity issue raised by the plaintiffs in that case.*

Adair involved a frozen foods facility that required workers to wear certain protective gear to maintain sanitary conditions. Under the terms of a collective bargaining agreement, the company furnished and laundered the gear. The employees donned the clothing before walking to the time clocks and punching in for the day, and at the end of the day punched out before walking to the changing stations to doff their uniforms. The workers had been represented by unions since 1980, when the company acquired the facility, and they had never been paid for time spent changing clothes and walking to the time clocks before and after the start of paid time.

The district court first ruled that the time spent donning and doffing was excluded from compensation by section 203(o) because the protective gear, which generally consisted of smocks, hard hats, ear protection, safety glasses, hair and beard nets, and steel-toed boots, was “clothing” and there was a custom or practice under a bona fide collective bargaining agreement of not compensating for clothes-changing time. However, the district court concluded, even though the clothes-changing time was non-compensable under section 203(o), donning and doffing activities were “principal activities” for purposes of starting the continuous workday because wearing the clothing was “integral and indispensable” to their principal work activity. As a result, the district court held that the subsequent walking time was compensable and denied the employer’s motion for summary judgment on that issue.

The employees had agreed at oral argument to waive their right to appeal the district court’s finding that their protective gear was “clothes” and instead argued only that that the district court correctly held that even if clothes-changing time is excluded from hours worked under section 203(o), time spent walking between changing stations and time clocks must be compensated. The Eighth Circuit disagreed and reversed the district court’s order. Relying on both the text of the FLSA and the Department of Labor’s regulations, the appellate court found the FLSA “links the concept of principal activity to employment,” and “contemplates that a ‘principal activity’ is one ‘which an employee is employed to perform.’” Thus, the Eighth Circuit found that if an employee is not “employed to perform” a particular activity, no matter how basic to the employee’s work, then it is not a “principal activity” that begins or ends the continuous workday. In this case, since the clothes-changing time was excluded from compensation and was not “hours for which an employee is employed,” changing clothes was not a principal activity that started or ended the workday.

The Eighth Circuit distinguished the Supreme Court’s 2005 ruling in Alvarez v. IBP, Inc. that walking time was a compensable principal activity because it was “integral and indispensable” to donning and doffing protective gear, which the Court also found to be a principal activity. Alvarez was not controlling, the Eighth Circuit stated, because the case did not involve a collective bargaining agreement that had excluded donning and doffing time from compensation and therefore section 203(o) did not apply.

Significantly, the Eighth Circuit also noted the Department of Labor’s current position that an activity excluded from compensation by section 203(o) could still constitute a “principal activity” that starts the continuous workday, but found the DOL’s position unpersuasive because its views on the subject “have vacillated with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter.”

We will continue to monitor developments as other courts weigh in on the issue.

*Note: Littler Mendelson has filed an amicus brief in Sandifer in support of U.S. Steel Corp. on behalf of the Grocery Manufacturers Association.

Photo credit: Matt Collingwood