Eighth Circuit Disses DOL in Opinion Kicking Employees’ FLSA Claims

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PPEFLSA claims have been on the rise in the past several years, most recently spiking over 7,700 cases filed in 2013This graphic shows the dramatic rise since 1990.  The Eighth Circuit in this decision considered two laborers’ “donning and doffing” claims for overtime against ConAgra, and, in finding for the employer, the Court dismisses a key Department of Labor opinion bearing on the case and sends the Plaintiffs’ claims to the cutting floor.

Workers’ Donning and Doffing FLSA Claim

ConAgra operates a facility in Marshall, Missouri, that produces frozen foods.  ConAgra requires employees to wear personal protective equipment (PPE).  To keep the equipment sanitary, ConAgra had agreed with the workers’ labor unions that ConAgra will furnish and launder the PPE.  As a result, the workers are required to “don and doff” their PPE on site in changing stations at the facility.  After donning their uniforms, workers walk to a time clock where they punch in at the beginning of the day.  At the end of the day, workers must punch out, walk to the changing station, and doff their uniforms.

The Plaintiffs, two laborers, filed suit against ConAgra under the Fair Labor Standards Act (“FLSA”), claiming that ConAgra failed to compensate them and other employees for (1) time spent changing in and out of uniforms, and (2) time the workers spent walking between changing stations and the time clocks.

FLSA Legal Background

The FLSA requires that workers are paid time-and-a-half for hours worked beyond forty in a week.  While the law does not define “work” or “workday,” an employee’s work begins with the first “principal activity” of employment and ends with the last such activity.  For time involving other “non-principal” tasks to be compensable, these activities must be performed between the first and last principal activities of the day.

Congress has weighed in twice on this issue in response to the Supreme Court’s treatment of the workday over the years. First, in 1947, Congress passed the “Portal to Portal Act,” which generally excludes time from the workday time spent walking, riding, or traveling to and from the actual place of work, and by excluding activities that a preliminary or “postliminary” to the principal work activities.

Second, two years later, Congress excluded time spent changing clothes from the hours and employee is working, providing that the time has been excluded by the terms of a collective bargaining agreement or custom and practice under a collective bargaining agreement.

The Court’s Rejection of DOL Guidance

The collective bargaining agreement for these employees expressly excluded the donning and doffing time as compensable work time, which should have ended the discussion.  The plaintiff workers still claimed that the donning and doffing time was a “principal activity” of their employment, and pointed to a DOL opinion supporting their claim.

The Court dismissed this argument, noting:

The Department’s views on whether excluded activities can be principal activities have changed with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter. . . . . Given this inconsistency, the Department’s position is “entitled to considerably less deference than a consistently held agency view.” . . . .  Indeed, for this reason, all but one court of appeals to consider the Department’s positions in this and similar contexts have decided not to defer to the “gyrating agency letters on the subject.”

Ouch.  This decision is noteworthy because Courts usually give broad deference to government agencies.  Apparently, the DOL’s “gyrations” are not well received by our own Eighth Circuit.

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