Under FLSA section 203(o), time spent “changing clothes or washing 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.  So, does section 203(o) only apply to time spent donning and doffing at the beginning and end of the period in which the workers are at the plant?  Or does it also apply to such activities before and after lunch breaks?  The answer depends on the definition of “workday.”

The Seventh Circuit, in a 2-1 decision, answered this question in Mitchell v. JCG Industries, Inc.  In affirming the district court’s dismissal of the workers’ donning and doffing claims, Judge Posner took a broad view of the definition of “workday” and the applicability of section 203(o).

In Mitchell, line workers at a poultry plant sought compensation for time spent donning and doffing protective gear.  The main issue on appeal was whether section 203(o) applied to such activities before and after lunch breaks.  In its expansive interpretation of the “workday,” the Court held that when employees take a half-hour lunch or other meal break, they are “in effect working two four-hour workdays in an eight-and-a-half hour period.”  This is in stark contrast to the long held interpretation that the “workday” extends from the time the employee reports to work until the time he is free to clock out for the day.  In departing from this interpretation, the Court found that the period before and after each lunch break was the beginning of a new “workday.”  As a result, the Court concluded that the time employees spent donning and doffing gear before and after meal breaks need not be compensated under section 203(o). 

The Court also held that this time could be excluded as de minimis.  In doing so, Judge Posner took the unusual step of having the court’s staff don and doff the clothing at issue.  Although the plaintiffs claimed that it took up to 15 minutes to don and doff the gear, the court’s staff was able to do so in less than two minutes.  According to Judge Posner, this in-camera time study “was not ‘evidence,’ . . . but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break.”

The Seventh Circuit’s broad view of the “workday” expands an employer’s arsenal for excluding time spent by employees donning and doffing protective gear.  The decision also reinforces many courts’ view that collectively bargained for rights regarding payment of pre- and post-work activities cannot be circumvented through alternate theories of recovery.