Hunton Employment & Labor Perspectives

Under Section 203(o) of the federal Fair Labor Standards Act (“FLSA”), an employee’s time spent “changing clothes” at the beginning or end of each workday is not compensable if such time is expressly excluded from compensable work time in a bona fide collective bargaining agreement or if there is a “custom or practice” of non-payment for such activities (or payment for a set amount of time).  On Monday, the Supreme Court clarified the definition of “changing clothes” for purposes of the FLSA, holding that a class of 800 unionized steelworkers, whose employment was covered by a collective bargaining agreement, were not entitled to compensation for time spent changing into and out of protective gear.

The U.S. District Court for the Eastern District of Pennsylvania recently decertified a wage and hour collective action against Pennsylvania poultry processor Farmers Pride, ruling that a collective action is not an appropriate mechanism for resolving claims that the employer failed to fully compensate employees for time spent engaged in donning- and doffing-related activities.  The Court’s 47-page opinion reflects a thorough analysis that will serve as guidance to employers and courts around the country faced with similar collective action claims.

The USDA’s Food Safety and Inspection Service (“FSIS”) is proposing an amendment to USDA regulations that would require meat and poultry processors to pay overtime to USDA inspectors who engage in donning and doffing activities that, when combined with the time spent engaged in inspection activities, result in more than 8 hours of work per day.  The FSIS claims that the amendment is necessary to achieve compliance with the Supreme Court’s decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), and the Office of Personnel Management’s interpretation of that decision.