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“It’s not what you wear—it’s how you take it off,” an anonymous author exclaimed. Whether employees must be paid for taking off and putting on a variety of items, from aprons to mesh gloves, continues to spark controversy. In the latest pronouncement on the subject, in Salazar v. Butterball, the Tenth Circuit recently concluded that the Department of Labor’s (DOL) viewpoint on what constitutes non-compensable “time spent changing clothes” should receive no weight.
The issue that has divided the courts and the DOL is what constitutes “clothes” under Section 203(o) of the Fair Labor Standards Act (FLSA) which excludes from compensable time any time spent “changing clothes” if that time is non-compensable under either the express terms or custom and practice of a collective bargaining agreement (CBA). In other words, if a union member is covered by a CBA in which, either by express language or custom and practice, time spent changing clothes is not paid, then the employer does not have to pay for that time under the FLSA.
While it may sound simple to determine what it means to “change clothes,” the issue is not so simple, particularly when the clothing also protects the employee. Is an apron “clothing”? Is a hardhat? What about mesh gloves? Or arm guards? Steel-toed shoes? Where to draw the line? The Wage and Hour Division of the Department of Labor has shifted its opinion three times. First, in 1997 it took the position that protective safety equipment worn over apparel was not “clothing.” Then, in 2002 it took a 180 degree turn, declaring that “changing clothes” applies to “the putting on and taking off of the protective safety equipment typically worn in the meat packing industry. . . .” In 2010 the Division completed the circle by concluding that changing clothes “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”
In Salazar, unionized employees of a turkey processing plant in Colorado wore aprons, plastic sleeves, gloves, hard hats, earplugs, and some even wore mesh gloves, knife holders and arm guards. They sought compensation for their time “donning” or “doffing” these items each day. In affirming summary judgment for the employer, the Tenth Circuit declined to defer to the Wage & Hour Division’s most recent interpretation of the law, or any of its interpretations, because it had reversed course three times. Moreover, the court declared the agency’s current position is “not . . . particularly well-reasoned.”
Instead, the court took a common sense approach, finding that the ordinary meaning of “clothes” encompassed all of the items worn by these plant workers, and rejecting any distinction based on whether the items are “ordinary,” “street clothes,” or worn for safety or protective purposes, as not “particularly coherent or workable.” The court also discarded the approach taken by the Ninth Circuit—the one federal circuit court that has ruled to the contrary—that “generic” protective clothing, such as boots, frocks and hard hats, should be distinguished from “unique” protective clothing, such as mesh gloves or knife holders. The “unique” equipment worn by these turkey plant workers was not viewed as sufficiently cumbersome, heavy or complicated to fall outside of the definition of “clothes.”
With this latest ruling, we now have six federal appellate circuit courts finding that donning and doffing protective equipment is not compensable work time under these circumstances, and one going the other way. But the battle over what constitutes compensable time changing “clothes” no doubt will continue to rage, at least until more cases clearly delineate when employees must be paid for putting on or taking off their protective equipment.
Photo credit: Matt Collingwood