Last week, Judge Posner, writing on behalf of the Seventh Circuit, disagreed with the Sixth Circuit when examining whether, in cases where a collective bargaining agreement does not provide for compensation for the time a worker spends putting on protective clothing to start his shift, the time spent walking from the locker room to the work station is nevertheless compensable time. Sandifer v. United States Steel Corp. (7th Cir. May 8, 2012 ) (PDF).
The Seventh Circuit held that such time is not compensable, because by excluding compensation for changing clothes, the parties to the collective bargaining agreement recognized that changing clothes is not a principal activity from which the compensation clock should start running. The Sixth Circuit, in contrast, had concluded that changing time, even where not compensable, was a “principal activity,” where required by the employer. Franklin v. Kellogg Company, 619 F.3d 604 (6th Cir. 2010) (PDF). The Seventh Circuit expressed its criticism of the Sixth Circuit’s opinion as “offering only a conclusion, not reasons.” Judge Posner also rejected the Department of Labor’s amicus position, noting that the Department’s position had oscillated throughout each of the last three presidencies and that it would be a travesty if a plaintiffs’ winning was dependent upon who was President at the time of the suit.
This issue is shaping up as one that may soon appear on our en banc watch. We will keep you posted.
