Summary of FLSA Collective Action Opinions From the Fifth Circuit During 3Q 2008

A group of poultry workers at three separate plants in southern Mississippi filed a collective action alleging that Defendant failed to pay them compensation and accrued overtime for certain off-the-clock work including, inter alia, time spent donning and doffing certain protective gear and equipment. Both Plaintiffs and Defendant moved for summary judgment with regard to whether the donning and doffing of certain gear and equipment constituted “work” under the FLSA and whether these activities were both “integral and indispensable” to Plaintiffs’ principal activities. The Court held that the Plaintiffs raised a genuine issue of material fact on both of these points and denied both parties’ motions on this issue. As part of its analysis, the Court rejected the Tenth Circuit’s definition of “work” in Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. 1994), and instead adopted the view of the Third Circuit in De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3rd Cir. 2007). However, the Court did grant Defendant’s motion for summary pursuant to 29 U.S.C. 203(o), which excludes time spent “changing clothes or washing at the beginning or end of each workday which was excluded from measured working time …by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.” In reaching this conclusion, the Court stated that “when employees and union representatives are conclusively aware of the facts surrounding compensation policies for changing clothes at the beginning and end of each workday, and reach an agreement under a CBA that does not compensate employees for the time, a ˜practice’ exists under the CBA sufficient to invoke the  203(o) defense.” Id. at **39-40. This conclusion eliminated the Plaintiffs’ claims for time spent changing clothes during periods covered by CBAs, but not for post-donning and pre-doffing walking and waiting time under the continuous workday rule.
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