By virtue of IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) and similar cases, a substantial body of case law has developed regarding the extent to which time that employees spend “donning and doffing” clothing and protective gear is compensable under the Fair Labor Standards Act (FLSA). These cases establish that such time is compensable where the donning and doffing activities are an “integral and indispensable” part of the employees’ principal activities. A recent decision by a federal court in Missouri, however, confirms the viability of an exception for donning and doffing time in certain circumstances.
In Hudson v. Butterball, Inc., Case No. 08-5071-CV-SW-RED (W.D. Mo. October 14, 2009), Janice Hudson and other employees worked in a turkey processing plant in Carthage, Missouri. Employees were paid from the time the first turkey arrived at their work station until the time the last turkey left their work station. Employees were not paid for the time they spent sanitizing, donning, and doffing clothing and protective gear such as smocks, bump caps, hair nets, coveralls, mesh aprons, safety glasses, mesh gloves, Kevlar gloves, and knife holders. Employees also were not paid for the time they spent walking to and from their work station after donning or before doffing these items. Hudson brought suit seeking compensation for the time spent sanitizing, donning, doffing, and walking to and from her work station. She sought to pursue the matter as a collective action under the FLSA, and as a class action under Missouri minimum wage law and common law (breach of contact and quantum meruit).
In its defense, Butterball primarily relied on 29 U.S.C. § 203(o), which provides that “hours worked” does not include “time spent changing clothes or washing at the beginning or end of each workday” if such time was excluded from compensable time “by the express terms of or by custom or practice under a bona fide collective bargaining agreement.”
On Butterball’s motion for summary judgment, the court first found that “clothes,” for purposes of section 203(o), was to be interpreted broadly to include the clothes and protective gear at issue. In so ruling, the court rejected the Ninth Circuit’s narrower construction of “clothes” in Alvarez v. IBP, Inc., 339 F. 3d 894 (9th Cir. 2003). The Butterball court refused to adopt the Ninth Circuit’s narrower construction, finding that the Ninth Circuit had improperly likened the section 203(o) definition of “hours worked” to a section 213 exemption.
The Butterball court next found that Butterball had established a “custom or practice” of non-payment for sanitizing, donning and doffing time. The court based its determination on a longstanding practice of non-payment, coupled with evidence that the union had proposed payment, and had later withdrawn that proposal, during contract negotiations.
On the basis of these findings, the court granted Butterball’s motion for summary judgment on the FLSA and Missouri minimum wage law claims. In addition, the court granted Butterball’s motion for summary judgment on the common law claims because Hudson had failed to exhaust remedies under the grievance and arbitration provisions of the collective bargaining agreement.
The Butterball case serves as an important reminder to employers and practitioners that section 203(o) may provide an opportunity to continue longstanding compensation practices with respect to donning and doffing time in certain union contexts.