The Sixth Circuit yesterday joined a majority of Circuit Courts in interpreting the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. on the issue of time spent by employees in putting on and removing uniforms and equipment at work.  See Franklin v. Kellogg Co. (6th Cir., Case No. 09-5880, Aug. 31, 2010) (PDF).  The Franklin opinion provides much needed clarity for federal labor law in this Circuit.

The Sixth Circuit joined the Third, Fifth, Eleventh, and Federal Circuits in determining the proper burden of proof that applies under 29 U.S.C. § 203(o) for measuring overtime hours of employees.  The Sixth Circuit also followed the Fourth and Eleventh Circuits in interpreting the meaning of § 203(o).

View the extended summary of Franklin, after the jump.

Alice Franklin, an employee of Kellogg Company at its Rossville, Tennessee plant, filed suit on behalf of herself and all similarly situated employees to recover wages under the FLSA for time spent donning and doffing Kellogg’s mandatory food safety uniforms and protective equipment, as well as for time spent walking to and from the company’s change area and time clock.

Since its Rossville plant opened in 1989, Kellogg has required all hourly employees to wear company-provided uniforms, consisting of pants, snap-front shirts bearing the Kellogg logo and employee’s name, and slip-resistant shoes (collectively, the “uniform”).  Employees also must wear hair nets and, where necessary, beard nets, safety glasses, ear plugs, and bump caps (collectively, the “standard equipment”).  Kellogg employees are required to change into their uniform and standard equipment when arriving at work, and to change back into their regular clothes before leaving work.  Kellogg has never paid its hourly employees for the time spent donning and doffing the uniform and equipment or the time spent walking to and from the locker room and the time clock.

Under the FLSA, employers must pay their employees an overtime wage if they work more than 40 hours per week.  See 29 U.S.C. § 207(a)(1)Section 203(o), however, excludes “changing clothes” from the measured working time under § 207 if it has been excluded by custom or practice under a bona fide Collective Bargaining Agreement (“CBA”).  29 U.S.C. § 203(o).

The Sixth Circuit in Franklin first had to determine the proper burden of proof that applies under § 203(o).  Franklin argued that § 203(o) was an exemption treated like an affirmative defense that had to be strictly construed in her favor and that Kellogg bore the burden of proving that the time was excluded.  Kellogg, by contrast, suggested that § 203(o) was not an exemption but rather an exclusion of time spent changing clothes from the definition of hours worked where there has been a custom or practice of nonpayment under a bona fide CBA.  Although the federal courts, including the Circuits, are split on the issue, the Sixth Circuit agreed with the “majority of our sister circuits” (in this case, the Third, Fifth, Eleventh, and Federal Circuits) that interpret § 203(o) not as an exemption but as an exclusion from the definition of work, thus placing the burden on the plaintiff.

The next question was whether the donning and doffing of Kellogg’s uniform and standard equipment constituted “changing clothes” to be excluded under § 203(a).  The Sixth Circuit agreed with the district court that all of these items were properly construed as “clothes” within the meaning of § 203(o).  Although the Sixth Circuit recognized that its conclusion was at odds with the Ninth Circuit, with several district courts, and a with Department of Labor opinion, the Sixth Circuit stated that “[w]e agree with the Fourth and Eleventh Circuits that these items ‘fit squarely’ within the definition of ‘clothes.’”

Because the items at issue were clothes within the meaning of § 203(o), the Sixth Circuit next had to decide whether there was a custom or practice under a bona fide CBA of nonpayment for changing into those items.  After reviewing the record, the Sixth Circuit agreed with the district court that the evidence demonstrated that there was a custom or practice of nonpayment, and thus the time spent donning and doffing the equipment was excluded from “hours worked” under § 203(o).

The Sixth Circuit, however, reached a different conclusion than the district court on the issue of whether Franklin may be entitled to compensation for time spent walking to and from the locker room and time clock.  The Court of Appeals reversed and remanded on this issue so that the district court could consider the length of walking time and whether that time is de minimis.

The Franklin opinion was written by Judge Siler and joined by District Judge Graham of the Southern District of Florida.  Judge Clay wrote a separate dissenting opinion.  While he agreed with the majority that the donning and doffing activities constituted “changing clothes” for purposes of § 203(o) and that Franklin might be entitled to payment for walking time, Judge Clay disagreed that no material questions of fact remained as to whether the union knowingly acquiesced to nonpayment for donning and doffing time such that this custom or practice became an implied term of the CBA.