In Lopez v. Tyson Foods, Inc., — F.3d —-, No. 11-2344, 2012 WL 3792545, slip op. at 8 (8th Cir. Sept. 4, 2012), the 8th Circuit held, in part, that the donning and doffing of protective gear when taking mid-shift meal breaks were not compensable under the “continuous workday” rule of IBP Inc. v. Alvarez, 546 U.S. 21 (2005). Lopez upheld the district court’s determination that meal-related donning and doffing were part of a “bona fide meal period.” — F.3d —-, No. 11-2344, 2012 WL 3792545, slip op. at 8 (8th Cir. Sept. 4, 2012). As a result, the jury’s charge—to determine whether the meal period as a whole primarily benefited the employer, rather than whether the donning and doffing period itself was compensable as part of a continuous workday—was deemed proper.
Under the “continuous workday” rule set forth in Alvarez, all of an employee’s workday activities occurring between “principal activities” are compensable, so long as the activities otherwise satisfy FLSA provisions. 29 C.F.R. § 790.6(b); Alvarez, 546 U.S. at 37. See also Lopez, 2012 WL 3792545, slip op. at 2. But a “bona fide meal period,” which ordinarily must consist of at least a 30-minute uninterrupted period, is not worktime and therefore not compensable. 29 C.F.R. §§ 785.19, 790.6(b). Thus, if the time an employee spends doffing a uniform before a meal break and donning the uniform after a meal break counts as part of a bona-fide meal period, that time spent generally will not be compensable unless the meal break as a whole predominantly benefited the employer. See Lugo v. Farmer’s Pride Inc., 802 F. Supp. 2d 598, 613 (E.D. Pa. 2011) (collecting circuit court cases).
Lopez is one of the few circuit court cases addressing the compensability of meal-break-related donning and doffing. In Lopez, the plaintiffs sought compensation for, among other activities, donning and doffing when taking mid-shift meal breaks. Rather than having the jury consider whether the meal-related donning and doffing were compensable on their own, the district court asked the jury to consider whether the meal period as a whole—including the donning and doffing—predominantly benefited the defendant-employer. On appeal, the Lopez plaintiffs argued that the continuous workday rule of Alvarez should apply, such that the mid-shift donning and doffing would have been considered separately from the meal period (and thus more likely to have been found compensable as part of a continuous workday). Lopez, 2012 WL 3792545, slip op. at 8. See also Alvarez, 546 U.S. at 37.
The court disagreed and found that the donning and doffing were part of the meal period. In reaching its decision, the 8th Circuit relied on a prior 8th Circuit decision, Henson v. Pulaski County Sheriff Department, 6 F.3d 531 (8th Cir. 1993), in which the court held that sheriff’s deputies who remained on-call during meal breaks were only entitled to compensation during their meal periods if, because of their meal-break duties, the meal periods predominantly benefited the employer.
The 4th Circuit Court of Appeals reached a similar result last year in Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011), when it held that meal-break-related donning and doffing were not compensable because they formed part of a bona fide meal period. In that case, similar to the Lopez case, poultry plant employees appealed the trial court’s finding that mid-shift meal-break-related donning and doffing were not compensable. The court reasoned that the entire meal period should not be considered because the employees sought compensation “only for the time periods in which the acts of donning and doffing occur[red].” Perez, 650 F.3d at 369. Nevertheless, the court explained that its hands were tied by prior precedent, Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir. 2009), in which the court held that, as a matter of law, donning and doffing occurring before and after meal breaks are non-compensable because these acts are part of a bona fide meal period. Perez, 650 F.3d at 369 (citing Sepulveda, 591 F.3d at 216). But the Perez court made clear its reservations about Sepulveda’s correctness:
In resolving th[e] issue of compensation [for meal-break-related donning and doffing] as a matter of law, the Court in Sepulveda appears to have departed from our holding in Roy [v. County of Lexington, 141 F.3d 533, 545 (4th Cir. 1998)], which instructs that the issue whether employees are entitled to receive compensation as a result of particular activities performed incident to a meal break presents ‘a question of fact to be resolved by appropriate findings of the trial court.’
Perez, 650 F.3d at 370 (emphasis added). The Perez court remarked that “[i]f [it] were writing on a clean slate,” it would hold that meal-related donning and doffing were “not part of the ‘bona fide meal period’ but [were] compensable as ‘work’ under [Alvarez’s] continuous workday rule.” Id. at 369.
Thus, despite reaching the same conclusion, Lopez and Perez represent widely differing views on the appropriate classification of mid-shift meal-break-related donning and doffing. Not surprisingly, district courts are split on the issue. Some district courts have concluded, like Lopez, that meal-break-related donning and doffing are part of a meal period, and therefore only compensable if the entire meal period is compensable. E.g., Garcia v. Tyson Foods, Inc., 766 F. Supp. 2d 1167 (D. Kan. 2011), Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300 (N.D. Ala. 2008), Anderson v. Perdue Farms, Inc., 604 F. Supp. 2d 1339 (M.D. Ala. 2009). Other district courts, embracing the reservations expressed by the Perez court, have reached the opposite conclusion. E.g., Bouaphakeo v. Tyson Foods, No. 5:07-cv-04009-JAJ, 2011 WL 3421541 at *9 (N.D. Iowa Aug. 4, 2011) (relying heavily on Perez’s expression of “doubt whether the decision in Sepulveda was consistent with prior circuit precedent” in declining to find donning and doffing as part of a bona fide meal period at the summary judgment stage); Lugo v. Farmer’s Pride Inc., 802 F. Supp. 2d 598 (E.D. Pa. 2011) (declining to grant summary judgment due to a factual dispute as to whether meal-related donning and doffing occurred before and after or during the meal period). In Lugo, part of the court’s unwillingness to grant summary judgment to the defendant was due to the lack of binding circuit precedent to guide its decision. The court noted that, “given the recent proliferation of FLSA cases, particularly in the poultry-processing industry,” the Third Circuit “may issue a ruling on the issue . . . before this case goes to trial.” Lugo, 802 F. Supp. 2d at 614-15. Indeed, as Lugo recognized, it may not be long before other circuit courts weigh in on the classification of meal-break-related donning and doffing. In the meantime, litigants should be aware of the existing cases and the rationale followed by these courts when determining compensability of donning and doffing incident to meal breaks.
Ashe, Rafuse & Hill, LLP