The Seventh Circuit’s August 2, 2010 holding that § 3(o) of the Fair Labor Standards Act does not preempt state laws should not come as much of a surprise. Spoerle v. Kraft Foods Global, Inc., 2010 WL 2990830 (7th Cir. 2010). The FLSA specifically provides that it does not preclude states from passing more protective laws, such as higher minimum wages. State wage-hour laws are also an established exception to the labor law preemption doctrine. Thus, the worrisome thing about the Spoerle decision is not the preemption ruling but the potential exposure to donning and doffing claims under state law that it highlights. While federal law includes two important defenses to donning and doffing claims, the Portal-to-Portal Act and § 3(o), most state laws and regulations lack them.
The FLSA contains no definition of the term “work” or “working time.” After World War II, the Supreme Court held that work includes “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place.” Anderson v. Mount Clemons Pottery Co., 328 U.S. 680 (1946). That definition of work included time spent changing clothes and washing up that many employers excluded from paid time, in many instances pursuant to collective bargaining agreements. Outraged, Congress passed two amendments designed to override the holding that changing clothes at work (“donning and doffing”) is necessarily included in working time. The Portal-to-Portal Act of 1947 excluded preliminary and “postliminary” activities from working time, if there was an established practice of not paying for them. Two years later, Congress amended the FLSA by adding § 3(o), which provides that when employees are covered by a collective bargaining agreement, changing clothes and washing up are not work if there is an established practice of excluding them from working time. In 1956, the Supreme Court drove a hole in the Portal-to-Portal Act’s protection, holding that changing clothes must be counted as work if it is “integral and indispensable” to the employee’s primary activity. Steiner v. Mitchell, 350 U.S. 247 (1956). The Steiner case arose in a battery plant in which the employees were exposed to lead and acid. Many subsequent decisions limit Steiner to donning and doffing protective gear in extraordinarily hazardous situations.
In recent years, there has been a wave of donning and doffing cases, especially against meat packing and poultry plants. In Spoerle, the plaintiffs brought a collective action against an Oscar Mayer meat processing plant in Wisconsin, under federal and state law, claiming that time spent donning and doffing protective gear should have been included in working time. The Company asserted the Portal-to-Portal and § 3(o) defenses. The district court ruled that neither defense applied under federal law. It characterized as “truly bizarre” a solidly reasoned Second Circuit’s decision holding that Steiner is limited to extraordinarily dangerous workplaces. Instead, it read Steiner as applying to any company-required protective equipment, thus practically eliminating the Portal-to-Portal Act defense to donning and doffing cases. It further held that protective gear was not “clothes” within the meaning of § 3(o). 527 F. Supp.2d 860 (W.D. 2007). (The Department of Labor has flip-flopped on this issue. See the June 24 posting in this blog).
After the initial district court decision, the parties agreed to a stipulation, in which the company withdrew all but two defenses: (1) that the donning and doffing constituted changing clothes under § 3(o), and (2) that § 3(o) preempted the state law claims. The district court then issued a second decision. It recognized that a Seventh Circuit decision, issued since its original decision, supported the company’s argument that § 3(o) covers donning and doffing protective gear. However, the court found it unnecessary to decide the § 3(o) defense under federal law, because there was no comparable provision in Wisconsin state law. Thus, unless § 3(o) preempted state law, the plaintiffs would win. The district court found no preemption. The Company appealed to the Seventh Circuit.
On appeal, the plaintiffs continued to argue, as an alternative grounds for affirmance, that § 3(o) does not cover donning and doffing protective gear. The Court of Appeals said that argument “is a loser, for reasons given in Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir. 2009).” (Note: the author of this article was defense counsel in Sepulveda.) However, the Court of Appeals accepted the plaintiffs’ argument that § 3(o) does not preempt state law. The Company did not lose for lack of a good panel. The unanimous panel included Judges Easterbrook and Manion as well as Judge Evans. The Court of Appeals did not consider whether the Portal-to-Portal Act covers donning and doffing. That issue is presented in a case pending argument in the Fourth Circuit, Perez v. Mountaire Farms.
Many donning and doffing cases, particularly those concerning the poultry industry, arose in states which lack state overtime laws. Sepulveda, for example, concerned a plant in Delaware. In states which have overtime laws, the Spoerle decision highlights the need to determine whether there is any state law or regulation comparable to the Portal-to-Portal Act or § 3(o). A Westlaw search for terms used in § 3(o) (the search terms were “time /s spent /s “changing clothes”) returned only three states with comparable provisions, West Virginia, Idaho and Iowa. In other states, depending on how the state law and regulations are worded, an employer might argue that the state should not use the original definition of work articulated in Anderson v. Mount Clemons Pottery, which was modified twice by statute, and should instead follow the FLSA, as amended by the Portal-to-Portal Act and § 3(o). That, however, would be a complicated argument to make, especially in a state court. In view of the risk illustrated by the Spoerle decision, employers in states with overtime laws would be well advised to reevaluate their potential exposure to donning and doffing claims, taking into account whether the state law and regulations incorporates the Portal-to-Portal Act and § 3(o) defenses.
By Eric Hemmendinger, Shawe & Rosenthal, LLP, Baltimore Maryland