Some pre- and post-shift activity not compensable

published in McAfee & Taft EmployerLINC | April 28, 2016

By Roberta B. Fields

In recent years, a number of collective action wage and hour disputes involving the donning and doffing of protective work clothing have made their way through the courts. And in many of those cases, the employers have been on the losing end of those judgments and settlements. But what happens if the topic of compensating employees for donning and doffing and related work activities is specifically addressed in a collective bargaining agreement? The Tenth Circuit recently heard such a case, this time ruling in favor of the employer.


Plaintiffs were current and former unionized hourly employees in the slaughter and fabrication operations of a beef processing plant in Greeley, Colorado. On August 27, 2008, the workers filed a collective action against the company under the Fair Labor Standards Act, alleging they had not been adequately compensated for pre- and post-shift time spent donning and doffing clothing and protective gear, washing equipment and themselves, and walking to and from their job posts. They also sought compensation for the entire meal break, asserting it was not a bona fide meal break; or that they should at least be compensated for the time donning, doffing, washing and walking at the beginning and end of meal breaks.

Regulations at the plant require workers to wear hair nets, aprons, gloves, plastic sleeves and surgical scrubs to prevent contamination. For worker safety, at the beginning of the day, employees put on personal protective equipment consisting of boots, scabbards, mesh protective equipment, hard hats, cut-resistant gloves and safety glasses. They then retrieve their knives and proceed to the production floor. Depending on their job duties, they may have to sanitize their protective equipment and obtain frocks, cotton gloves and cut-resistant gloves from supply windows. At the end of the day, most of the above is performed in reverse order. Additionally, employees perform similar tasks at the beginning and end of their meal break.

FLSA requirements

The FLSA requires an employer to compensate employees for all the time an employee spends working on the employer’s behalf. While the FLSA does not define “work,” the term has been defined by the courts in Tennessee C., I. & R. v. Muscoda Local N. 123 as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”

Activities excluded from compensation

Under the Portal-to-Portal Act of 1947, the term “work” does not include commute time and walking to and from an employee’s work station. The term “work” also does not include “activities which are preliminary to or postliminary to said principal activity or activities.”

Another basis for excluding activities at the beginning and end of the workday from compensation is the de minimus doctrine. While there is no precise amount of time that fits under the exemption, generally speaking, it is work that lasts seconds or minutes, not regularly performed, and an administrative difficulty to record. The doctrine does not cover time that is part of the employees’ fixed or regular working time.

Also, Section 203(o) of the FLSA states that collective bargaining agreements may provide that changing clothes and washing at the beginning and end of the work day are not compensable.

Once the workday starts, under the “continuous-workday rule” as promulgated by the Secretary of Labor, all activity is ordinarily compensable until the work day ends. For example, an activity like walking to a work station that would not be covered under the Portal-to-Portal Act if it occurred at the beginning of the day would be covered if it occurred after the employee started the first principal activity of the day. An exception to the continuous-workday rule is a bona fide meal break. The employer is not required to compensate for such a break, which is ordinarily at least 30 minutes.

What the collective bargaining agreement said

In this specific case, the collective bargaining agreement states that employees are to be paid from the time the first product arrives on the production line until the last product leaves the line. This practice, called “gang time,” “line time” or “master time” requires a supervisor and a union representative to track the time. Employees are free to socialize and hang out and no one records activities off the production line at the beginning or end of shift or during the meal break.

In 2000, the company and the union each hired an industrial engineer to calculate the time needed to don and doff safety clothing and equipment at the beginning and end of the shift and at meal time and, at the end of the shift, walk to the wash area to clean safety clothing and equipment, wait at the wash area, and wash safety equipment. The studies did not cover increased walk times caused by waiting, obstructions and congestion.

As a result of the study, the 2000 collective bargaining agreement incorporated measured times for those tasks, called “plug times” as compensable time. The employee is compensated by “plugging in” the calculated time for their position.

The 2000 plug times were subsequently included in collective bargaining agreements effective 2004 to 2009. In 2007, the company and the union again engaged industrial engineers to measure employee times for various tasks. The company’s engineer observed videos of employees and used a process called Ease Works that measured various movements for each task, such as reaching, grabbing and lifting. The union’s engineer used a different approach and measured how long it took employees to complete the tasks on the production floor.

In 2010, the company and the union reached an agreement to compensate employees as provided in the 2000 collective bargaining agreement but added additional plug time to account for pre- and post-shift walking between the locker room and the production floor.

Workers file collective action in federal court

The district court, on partial summary judgment, ruled the workers’ claim for pre- and post-shift changing of clothes was non-compensable because it was covered by the collective bargaining agreement.

In the bench trial, the court considered the parties’ expert testimony regarding the reasonableness of the plug times paid to the employees. The plaintiffs’ expert relied on videos shot at the plant over a two-day period. He testified workers were owed from 1.7 to 14.6 minutes per day beyond the plug times already paid. The company’s expert used the same videos but excluded avoidable delays such as personal phone use or socializing. His times were similar to the times the company began paying in 2010. The district court sided with the company finding the plug times paid under the collective bargaining agreement reasonably compensated employees.

On appeal, plaintiffs sought additional compensation for: (1) walk times before and after their production-line shifts to the extent not already covered by plug times paid by the company; and, (2) Time spent during their lunch breaks walking, washing, donning and doffing not properly compensated by plug times. Plaintiffs’ claims were rejected by the Tenth Circuit, but the reasoning was different from the district court.

The Tenth Circuit found the walk times from the locker room to the production floor at the beginning of the shift and from the wash stands to the locker rooms at the end of the shift were not compensable absent the collective bargaining agreement. The court reasoned: (1) under Section203(o) of the FLSA, time at the beginning or end of the workday devoted to changing clothes is not compensable if the collective bargaining agreement so provides; (2) time spent donning and doffing items that cannot be described as clothing is also not compensable if, on the whole, the time can be described as time changing clothes; (3) if time to perform an activity is not compensable under Section 203(o), then the activity is not a “principal activity” that begins or ends the workday; (4) travel to the place where the employee performs a principal activity of the job is ordinarily not compensable under the Portal-to-Portal Act, and it does not become compensable just because during that travel the employee must carry an item necessary for the performance of the work, if the carrying adds little time or inconvenience; and, (5) if collective bargaining results in providing some compensation for unmeasured work time, such compensation does not convert any additional otherwise non-compensable activities into work time.

The bottom line

In the end, the appeals court ruled Section 203(o) was enacted to leave to collective bargaining whether certain activities at the beginning and end of the workday off the production line should be compensated. As a result, the workers were only entitled to compensation provided through the plug times in the collective bargaining agreements. This reasoning applied to activities before and after work, and to the activities before and after the bona fide meal period.

  • Castaneda et al v. JBS USA, LLC and Swift Beef Company et al, Case Nos. 14-1217 and 14-1221, U.S. Court of Appeals for the Tenth Circuit