Salazar v. BUTTERBALL, LLC
644 F.3d 1130
| 10th Cir. | 2011Background
- Longmont, Colorado turkey plant; PPE required and worn before/during shifts and removed after shifts.
- Plaintiffs allege nonpayment for donning and doffing PPE and sanitizing gear and walking between locker and production area.
- Butterball continued ConAgra’s pay practices, never paying most production employees for donning/doffing.
- Union Local 7 represented production employees; CBAs from 2005–2008 and 2008–2009 did not address donning/doffing pay.
- Grievance filed by the Union in 2005; arbitration not pursued and dispute resolution unclear; no explicit donning/doffing pay terms in CBAs.
- District court granted summary judgment for Butterball, ruling PPE time excluded under § 203(o) and Wage Order 27 did not apply; appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether donning/doffing PPE is changing clothes under § 203(o). | Salazar argues PPE is clothes. | Butterball argues PPE not clothes or not compensable. | Yes; PPE is clothing under § 203(o). |
| Whether there was a custom or practice under a CBA of nonpayment for donning/doffing. | Nonpayment existed pre- and post-CBA; union acquiesced. | Nonpayment ceased or not established as a custom. | There was a custom or practice of nonpayment under § 203(o). |
| Whether Wage Order 27 applies to Butterball as a food/beverage employer. | Butterball is a food/beverage employer; Wage Order 27 covers it. | Butterball is a wholesale manufacturer, not a food/beverage employer. | Butterball not subject to Wage Order 27. |
| Whether § 203(o) is an exemption and should be construed narrowly. | Section 203(o) is an exemption to be construed in plaintiffs’ favor. | § 203(o) is not an exemption and is broader. | § 203(o) is not an exemption; it can apply via CBAs and pre-existing practices. |
Key Cases Cited
- Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.1994) (donning/doffing of non-unique PPE may be non-compensable work)
- Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir.2003) (distinguishes unique vs. non-unique PPE; Portal-to-Portal effects)
- Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir.2009) (protective PPE included in clothes under § 203(o))
- Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir.2010) (protective PPE generally treated as clothes under § 203(o))
- Anderson v. Cagle's, Inc., 488 F.3d 945 (11th Cir.2007) (PPE donning/doffing contemplated under § 203(o))
- Turner v. City of Philadelphia, 262 F.3d 222 (3d Cir.2001) (clothes-change exclusions context in § 203(o))
- Arnold v. Ben Kanowsky, Inc., 361 U.S. 388 (1960) (exemptions to FLSA construed narrowly)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (judicial interpretation governs ambiguity resolution)