Tenth Circuit Cases Address Donning, Doffing, and Walking Time Issues

Must an employee be compensated for time spent donning personal protective equipment (PPE) before a shift and doffing the equipment after a shift? What about the time employees spend walking to a production area after donning their PPE before their shift or walking back to a locker room to doff their PPE after their shift? Two cases that concluded in July 2011 within the 10th Circuit (covering Colorado, Kansas, Oklahoma, New Mexico, and Wyoming) provide helpful guidance and important warning signs for employers faced with these kinds of pay issues.

In the first case, Salazar v. Butterball LLC (10th Cir. 2011), the Tenth Circuit Court of Appeals held that time employees in a Longmont, Colorado turkey processing plant spent donning and doffing PPE such as aprons, frocks, boots, hard hats, safety glasses, knife holders, arm guards, and gloves was not compensable, and affirmed summary judgment for the employer. The issue turned on whether such items constituted “clothes” under Section 203(o) of the Fair Labor Standards Act, which excludes “any time spent changing clothes or washing” from hours worked if such time is excluded from working time under the express terms of or by a custom or practice under a collective bargaining agreement (CBA). The meaning of “clothes” in this context has been interpreted differently by numerous federal courts, and the U.S. Department of Labor (DOL) has issued several conflicting guidance statements, but Salazar marks the first time the 10th Circuit has directly interpreted the issue. Notably, the court refused to defer to DOL guidance that indicated garments “designed to protect against workplace hazards” are not “clothes.” The CBA at issue did not expressly exclude the donning and doffing time from hours worked, but the court found that a custom or practice of such exclusion existed. The court also held that the turkey plant operations were not within the “food and beverage” industry under Colorado’s Wage Order, thus rejecting the plaintiffs’ separate claims under Colorado law.
 
The second case, however, illustrates related dangers that still lurk for unwary employers. The employer in Martinez v. Cargill Meat Solutions Corp. (D. Neb. 2009) won summary judgment on the issue of whether the PPE used by employees in their Schuyler, Nebraska beef processing plant constituted “clothes,” but the court refused to grant summary judgment on whether the time spent walking to and from the worksite was nonetheless separately compensable. On July 19, the court approved a settlement that included well over $800,000 for the plaintiffs’ attorneys fees alone, in addition to payments ranging from $4.00 to $6.00 per week for class members.
 
Employers who have employees donning and doffing PPE or spending time walking to and from worksites should continue to be vigilant about obtaining counsel regarding whether such time may or may not be compensable.