The Fair Labor Standards Act continues to be a source of significant litigation and risk for employers. My take on why this statute is the law most likely to be violated by my clients is that the FLSA simply does not fit very well in a modern work place. After all, the statute reflects a Depression–era view of the United States, a place where jobs typically involved manufacturing or agriculture rather than services and information technology. There are still a lot of “typical” jobs, of course, but a number of employers are finding themselves whipsawed between the demands and opportunities of the modern job, and an antiquated statute that still draws clear lines between work time and non-work time and the work place and non-work place.
FLSA language continues to be parsed more and more by plaintiffs’ lawyers, who focus on undefined terms that allow them to squeeze out what are effectively de minimus violations that apply to large work forces. As I have mentioned before in this blog, the threat of a large class action or FLSA collective action, with associated litigation costs in the millions of dollars, moves many an employer to a quick settlement.
A recent Seventh Circuit case shows how closely these lines are being drawn. The FLSA does not define when an employee begins “work”; it only requires that all working time be paid. This vagueness becomes a problem when employers require their employees to undertake preliminary activities that are not productive work, e.g. putting on uniforms or protective work clothes. These so called “donning and doffing” situations are perfect examples of the collective action problem facing employers – the time involved is relatively small for compensation purposes, but is typically spread across a huge work force, with significant potential liability.
In this case, the issue involved a requirement by US Steel that its employees put on flame retardant uniforms, gloves, boots, a hard hat, and other protective equipment before going to the job. The protected employees must then walk from their locker rooms to their work stations. In a non–union setting, the time spent changing into a uniform would be compensable and mark the start of the work day. In other words, the employees would be compensated from the time they enter the locker room to put on their uniforms through the time they travel to their work station, work their shift, and then return and remove their protective equipment.
But the FLSA contains a provision that allows union contracts to exclude from compensation all the time spent changing clothes or washing up at the beginning or end of each work day . Such an exclusion was negotiated between the Steelworkers and US Steel.
Notwithstanding this express provision, the plaintiffs in this case alleged that what they were putting on was not exactly clothing, but rather safety equipment. Since the collective bargaining agreement did not address the issue of pay for time spent putting on and taking off “safety equipment”, the Plaintiffs tried to argue that they should be compensated for this time, along with the travel time to and from the work area.
The Seventh Circuit panel was having none of this semantic dancing around. It quickly noted that clothing is almost always protective to some degree, and it made no sense for the collectively bargained provision to be circumvented in this manner. The Court stated that the union and the employer had negotiated a trade-off: the time spent changing clothes would not be compensable, in exchange for a higher hourly rate for time spent actually engaged in productive work. The Court also found that if the clothes changing time was not compensable, then the travel time between locker room and work station was not compensable either.
The final part of this opinion is worth reading for what the Court says about the Department of Labor and its brief filed on behalf of the Plaintiffs. Judge Posner, writing for the Court, noted that the Department of Labor’s position on this issue had shifted from the time of the 2008 election; specifically, the DOL favored the company’s position under the Bush Administration, and favored the employee’s position under the Obama Administration.
Judge Posner voiced his displeasure with this shifting of agency positions based on the nature of the administration in power:
“All that the Department has contributed to our deliberations, therefore, though it is not quite nothing, is letting us know that it disagrees with the position taken by the Bush Department of Labor...it would be a considerable paradox if before 2001, the Plaintiffs would win because the president was a Democrat, between 2001 and 2009 the defendant would win because the President was a Republican, and in 2012, the Plaintiffs would win because the President was again a Democrat. That would make a travesty of the principle of deference to interpretations of statutes of the agencies responsible for enforcing them... since that principle is based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.
In other words, the DOL opinions on these types of issues are virtually worthless. You would think someone in the agency would take this not so subtle hint in the future.