On June 8, 2010, Roetzel provided an update regarding the Department of Labor’s (DOL) Administrative Interpretation that time spent changing safety equipment must be compensated if it is required by law, by rules of the employer, or by custom. Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

On August 31, 2010, the U.S. Court of Appeals for the Sixth Circuit, which sits above the federal courts in Ohio, issued its opinion in Franklin v. Kellogg Company. This case dealt with the claims of Kellogg plant workers seeking payment for time spent changing food safety uniforms and protective equipment and for time spent walking to and from the changing area. Kellogg required its employees to wear company-provided uniforms consisting of pants, snap-front shirts, slip resistant shoes, hair nets, beard nets, safety glasses, ear plugs and bump caps. Kellogg required employees to change into their uniform and equipment upon arriving at the plant and to change into their regular clothes prior to leaving the plant so that the uniform and equipment could be washed at the plant.

There are several significant portions of the Sixth Circuit’s decision. First, it determined that § 203(o) is an exclusion and not an exemption. § 230(o) excludes changing clothes from compensable time under the Fair Labor Standards Act. The significance of this determination is that an exclusion leaves the burden of proof with the plaintiff and an exemption shifts the burden of proof to the employer.

More significant is that the Sixth Circuit did not afford the DOL’s June 16th interpretation any deference or weight. The Sixth Circuit stated, “The DOL’s position on this issue has changed repeatedly in the last 12 years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.” The Sixth Circuit ruled that the District Court’s decision granting judgment in favor of Kellogg on plaintiffs’ claims for compensation for time spent changing into the uniform and equipment was correct. It must be noted that this ruling was based on evidence that Kellogg had a custom or practice of not paying for the time spent changing clothing under a bona fide collective bargaining agreement.

The Sixth Circuit’s decision, however, was not completely employer-friendly. The Sixth Circuit determined that under the continuous workday rule, plaintiffs may be entitled to payment for pre- and post-changing and pre-donning walking time to the time clock and/or their work stations. The Court determined that changing into the uniform and equipment was an integral and indispensable part of the job. It did so because Kellogg required the activity and wearing the uniform and equipment primarily benefits Kellogg. The Court noted that the employees do receive protection from physical harm by wearing the equipment, but Kellogg received the primary benefit because the uniform and equipment ensure sanitary conditions and untainted food products.

The lesson from this decision is that the DOL’s Interpretation requiring employers to compensate employees for changing clothes if it is required by law, by rules of the employer, or by custom will not be afforded any deference or weight by the federal courts in Ohio. Whether employees must be compensated for time immediately preceding and proceeding changing of clothes depends on 1) whether the changing of clothes is required by the employer; 2) whether the activity is necessary for the employee to perform his or her duties; and 3) whether the activity primarily benefits the employer.