Nebraska Court Grants Summary Judgment for Employer on FLSA Section 203(o)

This week a Nebraska federal court granted partial summary judgment for the employer and held that the full complement of personal protective equipment (PPE) and gear worn by employees in a meatpacking plant was “clothes” for purposes of FLSA section 203(o) and thus donning and doffing the PPE was properly excluded from paid time under the collective bargaining agreement between the employer and the union representing the employees.  The Memorandum and Order was issued in Martinez v. Cargill Meat Solutions Corporation, case nos. 8:09CV247 and 4:09CV3079 (D. Neb. Apr. 12, 2011), in which Meckler Bulger Tilson Marick & Pearson, LLP represented CMSC.  The court also dismissed the workers’ claims for additional pay underNebraska state law finding that the state law claims were preempted by Section 301 of the Labor Management Relations Act because the claims required interpretation of the collective bargaining agreement.  However, the court declined to rule that the walk time that followed pre-shift donning and preceded post-shift doffing was a noncompensable activity, instead leaving that question to be decided at trial.  

The court ruled that the donning and doffing of mesh aprons, mesh sleeves, plastic arm guards, chain belts, scabbards and other items like smocks, hardhats and hairnets was “changing clothes” within the meaning of Section 3(o).  Judge Richard G. Kopf noted that five out of the six circuit courts of appeal to consider to the question have adopted a broad meaning of “clothes” to encompass various items of PPE.  See Sepulveda v. Allen Family Foods, 591 F.3d 209 (4th Cir. 2009); Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir. 2010); Spoerle v. Kraft Foods Global, 614 F.3d 427 (7th Cir. 2010); Allen v. McWane, 593 F.3d 449 (5th Cir. 2010); Anderson v. Cagle’s Inc., 488 F.3d 945 (11th Cir. 2007); contra Alvarez v. IBP, 339 F.3d 894 (9th Cir. 2003), aff’d on other grounds, IBP, Inc. v. Alvarez, 546 U.S. 21 (2005).   

Judge Kopf ruled that this interpretation was consistent with the FLSA’s legislative history.  Moreover, although the Department of Labor issued an Administrator’s Interpretation on June 16, 2010 that items like the PPE worn by meatpacking plant workers are not “clothes” under Section 3(o), Judge Kopf declined to follow the DOL’s interpretation, which he said has “changed repeatedly.”  Judge Kopf also found that the collective bargaining agreement expressly stated that employees would not be paid for “clothes changing” time that occurred before and after their shift.  Thus, he concluded this donning and doffing time at the union plant was not compensable under Section 203(o).  Judge Kopf specifically acknowledged that he was reaching the opposite conclusion of that by Judge Bataillon in Morales v. Farmland Foods, case no. 8:08CV504 (D. Neb. Aug. 16, 2010).   

Judge Kopf declined to rule, however, on whether the donning/doffing of PPE was a principle activity to mark the start or end of the paid workday. He noted that courts have ruled both ways on this issue and, because there were disputed issues of fact in the case, he deferred to the question to be decided at trial.  The Judge also denied the company’s motion regarding the Good Faith defense provided by FLSA section 259.  The Judge ruled that there were unresolved fact issues concerning the company’s November 2005 good faith reliance on DOL opinion letters issued on June 6, 2002 and May 14, 2007, both of which supported the company’s practices, because of an intervening 2003 decision from the Ninth Circuit in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003).

The Martinez decision follows on the heels of a similar ruling from a district court in Louisiana, Isreal v. Raeford Farms of Louisiana, 2011 WL 1188698 (W.D. La. Mar. 28, 2011) (see Memorandum Ruling), in which the court concluded that the donning/doffing of PPE worn by employees in a poultry plant was “changing clothes” for purposes of FLSA section 203(o) and, importantly, that the donning and doffing of PPE was not a principle activity and therefore did not mark the start or end of the continuous work day. 

Overall, these cases represent positive developments for unionized companies in the meat and poultry industry who have express language or a custom and practice of excluding clothes changing time from the paid workday.

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