The United States Supreme Court recently declined to accept review of the decision in Sepulveda v. Allen Family Foods, Inc., a case in which the Fourth Circuit Court of Appeals held that time spent donning and doffing protective gear at a unionized poultry processing plant constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and, thus, was not compensable time for which the employees must be paid. The former employee who filed the lawsuit in the first place and filed the petition before the Supreme Court presented the following question for review by the Supreme Court: “When calculating compensable time under the FLSA, does section 203(o)’s exclusion of ‘time spent in changing clothes’ apply to time spent donning and doffing protective equipment that is put on over unchanged clothes - a question on which multiple circuits have split.”

The employee and Petitioner argued that these issues were important for the Court to resolve because there is a conflict among the circuits and district courts. Most notably, the Ninth Circuit in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005), held that that protective items worn in the beef and pork industries are not “clothes” within the meaning of Section 203(o), and, therefore, employees are required to be paid for this time, which is in direct conflict with the Fourth Circuit’s opinion.

In opposition to the petition for review to the Supreme Court, the employer and Respondent, Allen Family Foods, Inc., distinguished Alvarez v. IBP, Inc., noting that the meat packing and poultry industries use different protective gear, and that the Petitioner oversimplified the facts in the case. In addition, the employer noted that, after the petition was filed, the U.S. Department of Labor issued an opinion letter stating that the term “clothes” in Section 203(o) does not apply to the protective gear worn by meat packing employees, but distinguished the heavy protective gear worn in meat packing plants from the lighter gear worn in poultry plants. Administrator’s Interpretation No. 2010-2 (June 16, 2010).

The employee also presented the issue of whether the requirement that exemptions from the FLSA are to be narrowly construed also applies to Section 203(o). In response, the employer argued that Section 203(o) is not an exemption, because it does not exempt any employee from the minimum wage or overtime provisions of the Act, and, therefore, ordinary statutory interpretation should apply.

Employers should not read too much into the Court’s refusal to hear this case. It is possible the Court prefers that other circuits weigh in on the issue before accepting review, particularly in light of the Department of Labor’s recent Administrator’s Interpretation.

This entry was written by Steven Kaplan.