Authored by Jessica Schauer Lieberman
Taking up a question the Supreme Court recently declined to consider, the Eighth Circuit on Friday addressed the types of activities that may start the compensable workday for purposes of the Fair Labor Standards Act. Specifically, the court held [here] that time spent changing into and out of uniforms could not “begin or end the workday” because the changing time itself was excluded under § 203(o) the FLSA. In so doing, the court declined to defer to a prior Department of Labor Administrator’s Interpretation on the same subject, joining a number of courts that have ignored the DOL’s guidance on this issue.
Although “work” is one of the central concepts of the FLSA, neither the statute nor its regulations define it. Instead, both the Supreme Court and Department of Labor have looked to the concept of the “workday” to determine what constitutes compensable time. In general, the workday runs from the first to the last “principal activity” of the day.
Here, the plaintiffs worked for a facility that produces frozen foods. Under the terms of their collective bargaining agreements, they were required to change into a uniform after arriving at the facility at the start of each day and remove it before leaving work at the end of the day. They filed suit claiming that they should be paid for time they spent changing into and out of their uniforms and walking between changing stations and their respective work stations.
The district court determined that that the employees were not owed any pay for time they spent “donning and doffing” the uniforms by operation of § 203(o) of the FLSA, which states that time spent “changing clothes . . . at the beginning or end of each workday” is excluded from compensable time if it is treated as non-work time by a collective bargaining agreement. Nevertheless, it decided that the employees should have been paid for time they spent walking to and from their work stations, reasoning that even though the changing time was not compensable due to § 203(o), it was still a “principal” activity that triggered the start of the workday. The Company received permission to appeal the latter ruling, and the Eighth Circuit reversed.
The Eighth Circuit examined the language of § 203(o), which states that clothes changing may be excluded from the “the hours for which an employee is employed,” and held that that time excluded under that provision could not also meet the definition of principal activity, which is defined as any activity the employee “is employed to perform.”
The court refused to give any weight to the DOL’s 2010 “Administrator’s Interpretation,” which held that an activity excluded under § 203(o) could start the continuous workday. The court described the DOL’s position as having “changed with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter,” and stated that these policy shifts “entitled [it] to considerably less deference than a consistently held agency view.” The Seventh Circuit’s decision in Sandifer similarly attacked the Administrator’s Interpretation, and several other courts have also ignored the department’s view. Even the DOL itself recently backed off of one of the other positions it took in the Interpretation.
While this case certainly is a “win” for employers, the Eighth Circuit’s narrow focus on the specific language of § 203(o) leaves open the question of whether it would apply the same principal to the judicially created “de minimis” doctrine. A de minimis activity is excluded from compensable time by virtue of the fact that it takes a very small amount of time to complete, and it affects a far broader set of workers than § 203(o). Both the Ninth and Second Circuits have held that de minimis time cannot start the continuous work day; it remains to be seen whether the Eighth Circuit would join them.