Kellogg Company (Kellogg) was granted summary judgment and dismissal of claims raised by a manufacturing employee in its Rossville, Tennessee manufacturing plant. In Franklin v. Kellogg Company, C.A. No. 08-2268 (W.D.Tenn.), the district court held that time spent by manufacturing employees changing into and out of company-issued gear was noncompensable under Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This is because Section 3(o) excludes time spent by employees donning and doffing “clothes” from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement.

Plaintiff Alice Franklin claimed that she was entitled to compensation for time spent changing into and out of company uniforms and other gear both prior to and after her work shifts. She sought to represent Kellogg employees on a nationwide basis. Ms. Franklin’s motion to certify a collective action under the FLSA, however, was rendered moot by the court’s finding in favor of Kellogg. As an initial matter, the court found that the company uniform and standard equipment used by the plaintiff constituted “clothes” under Section 3(o). The uniforms in question consisted of pants, snap front shirts and slip-resistant shoes and the standard equipment included hair nets, beard nets, safety glasses, ear plugs and bump caps. The court relied on its prior decision in Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D.Tenn. 2008), holding that protective gear worn by meat processing employees fell under the definition of clothes under Section 3(o). It found that plaintiffs failed to present any compelling reason to reconsider that holding.

Regarding the collective bargaining agreement in question, the court found that a long-established custom or practice of non-payment for changing time existed between Kellogg and its unionized workforce. The court explained that parties to a collective bargaining agreement are not required to undergo formal negotiations to establish a custom or practice, but rather one can be established as an implied term of the parties’ agreement through a period of acquiescence. In reaching its decision, the court noted that there were internal discussions amongst union members regarding the issue of payment for changing time, but the union had not pursued the issue during negotiations with Kellogg. In fact, the record evidence demonstrated that one union official told Ms. Franklin that the practice of non-payment for changing time had been going on for a long time.

The court further acknowledged that this issue had been raised by other Kellogg employees in a prior action filed in 2005 – Albright et al. v. Kellogg Company, C.A. No. 04-632 (E.D. Pa.). The Albright plaintiffs raised claims against Kellogg for its alleged failure to compensate manufacturing employees at its Lancaster, Pennsylvania manufacturing plant for time spent changing into and out of company-issued uniforms and other gear. The plaintiffs in Albright, after thirteen months of litigation, voluntarily dismissed their claims with prejudice. Kellogg’s employees at its Lancaster, PA and Rossville, TN plants are both represented by the Bakery, Confectionary, Tobacco Workers, and Grain Millers International (“Union”). The court found that the Union “[b]y representing the Lancaster employees who sued Defendant in 2004 for compensation for clothes-changing time, the Union acquired institutional knowledge of the defendant’s practice of noncompensation.” Thus, the court found that the union and, therefore, unionized manufacturing employees knowingly acquiesced to the practice of nonpayment for changing time.

The court further found that Kellogg relied in good faith on opinion letters issued by the United States Department of Labor that address the application of the Section 3(o). The most recent letter, issued in 2007, followed the Ninth Circuit’s decision Alvarez v. IBP, Inc., 339 F.3d 894 (2003) that held time spent donning and doffing of gear worn by meat production employees did not constitute changing clothes under Section 3(o). In that letter, however, the DOL reaffirmed its position that protective gear was excluded from compensable time under the FLSA notwithstanding the holding in Alvarez. The DOL explained that activities covered by Section 3(o) cannot be considered principal activities and do not commence the workday. It further explained that walking time following a Section 3(o) activity is not compensable unless preceded by a principal activity.

This blog entry was written by Tina Winston.