Time Spent Changing into Protective Gear Exempt Pursuant to Collective Bargaining Agreement

Two laborers at a frozen food production plant sued their employer under the Fair Labor Standards Act (FLSA) seeking compensation for unpaid time spent changing into and out of protective gear, as well as time spent walking between changing stations and the time clock. An employee's "principal activity" is the job an employee was hired to perform. Employees must be paid for all time spent performing a "principal activity" as well as other activities that are "integral and indispensable" to a principal activity. But the FLSA also provides that an employee is not required to pay for clothes-changing time or for walking to and from an employee's "principal activity" if the employer customarily does not pay for such time or there is a collective bargaining agreement stating that such pay is not required. The employees were subject to a qualifying collective bargaining agreement and district court agreed, against the employees' objection, that "protective gear" qualified as "clothes" for purpose of the exemption. Nevertheless, the district court denied the employer's motion for summary judgment because it concluded that changing in and out of the protective gear was "integral and indispensable" to the to the employees' primary work activity. The U.S. Court of Appeals for the Eighth Circuit reversed because it found that, logically speaking, it makes no sense to classify as part of a "principal activity" time that is affirmatively exempted by an agreement that the FLSA expressly permits an employee to make. In so deciding, the Eighth Circuit rejected as "unpersuasive" a Department of Labor opinion letter, which argued that only regular clothing — not "protective clothing" — generated the exemption and that even regular clothes-changing can in certain circumstances constitute a "principal actinicity." This decision provides an important clarification regarding this exemption. However, employers must apply a fact-specific analysis regarding the application of the exemption, and seek assistance of counsel in implementing any policies based on it.

For more information read Adair v. ConAgra Foods, Inc., No. 12-3565 (8th Cir. Aug. 13, 2013).