The Fair Labor Standards Act (FLSA) requires the payment of overtime at 1½ times an employee's regular rate of pay for every workday hour in excess of 40 hours per week. However, the statute doesn't define "workday." Read on to learn how the 8th Circuit clarified when a "principal activity" initiates the start of an employee's compensable workday.

'Donning and doffing' time claimed as principal activity

ConAgra Foods operates a frozen food facility in Marshall, Missouri. Hourly production and maintenance employees at the facility are represented by the United Food and Commercial Workers union (UFCW) or the Teamsters. Under its collective bargaining agreements (CBAs) with the unions, ConAgra requires employees to wear protective gear to ensure that products at the facility are sanitary.

ConAgra and the unions have agreed that the company will "furnish and launder" the gear and that it will remain at the facility. As a result, employees are required to "don and doff" their uniforms at changing stations in the facility upon arriving at work but before punching in at a time clock to start work. At the end of the day, they reverse the process. Historically, ConAgra has never compensated employees for the time spent changing into and out of their uniforms or for the time spent walking to and from the time clocks.

As luck would have it, two employees at the plant decided to file a lawsuit on behalf of themselves and other similarly situated employees claiming ConAgra violated the FLSA by failing to compensate them for (1) time spent changing into and out of their uniforms (i.e., donning and doffing) and (2) time spent walking between the changing stations and the time clock.

After ConAgra filed a motion for summary judgment (pretrial dismissal), the district court granted an interlocutory appeal (an interim appeal) so the 8th Circuit could address the validity of the employees' claims under the terms of the FLSA.

Principal activity controls work time payments

The FLSA doesn't define the term "workday." However, federal regulations implementing the law generally provide that "an employee's workday begins with the first 'principal activity' of his employment and ends with the last such activity." Time spent performing "nonprincipal" activities can also count toward working time if the nonprincipal activity is performed between the first and last principal activity of the day.

According to the ConAgra employees, the donning and doffing time at the beginning and end of each workday should be considered compensable time because wearing their uniforms is "integral and indispensable" to their principal work activities. The employees also asserted that the time spent walking to and from the time clock should be compensable because their workdays actually commence with the donning of their work clothes.

As a result, the nonprincipal activity (walking to the time clock) would become compensable because their workday has already started as of the moment they begin to dress for work.

The CBAs between ConAgra and the unions specifically exclude dressing activities from the employees' compensable time. Nevertheless, the employees asserted that the workday commences when they begin to dress in their work clothing, which is the activity they believe is the first principal work task of the day.

'Principal activity' defined

In examining the FLSA regulations, the 8th Circuit—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—noted that the Act contemplates that a "principal activity" is a duty "which [an] employee is employed to perform." According to the court, if an employee isn't employed to perform a particular activity, even if the activity could be said to be basic to the employee's work, then it isn't a principal activity that begins or ends the workday.

In this case, the CBAs between ConAgra and the unions specifically stipulate that the time employees spend changing clothes isn't compensable work time. Further, according to the court, the time spent changing clothes isn't "hours for which an employee is employed." In fact, those hours have already been excluded from measurable work time by custom and practice under the CBAs. As a result, the court concluded that changing clothes isn't a principal activity that begins or ends the workday at ConAgra.

Further, time clock walks aren't compensable work time because they follow the nonprincipal activity of changing clothes. According to the court, neither activity is considered working time under federal wage and hour law. Adair v. ConAgra Foods, Inc., 2013 U.S. App. LEXIS 18135 (8th Cir., 2013).

What to remember

For the last decade-plus, wage and hour collective actions have been all the rage, particularly "donning and doffing" and "time clock walk" cases in which employees seek back wages for alleged work time.

ConAgra's defense in this case was bolstered by the existence of CBAs that did not recognize employees' changing time as compensable time. Still, the 8th Circuit's decision is important to employers that have sweated over the definition of "principal activity" and the elusive point that defines the start of the workday.

The 8th Circuit made it clear that the concept of "principal activity" must essentially be linked to the concept of "gainful activity"—that is, an activity "which [an] employee is employed to perform." In this case, the law, the CBAs, and common sense indicated that ConAgra employees aren't employed to change clothes at the beginning or end of each workday.

Consequently, the court found that pre- and postshift donning and doffing activities are not principal activities. It then naturally follows that walking to a time clock after putting on work clothes isn't a principal activity that begins the compensable workday.

If you're concerned about the compensability of time your employees spend on preliminary or postliminary activities, give some thought to the analysis offered by the appeals court in this case. If an employee isn't "employed to perform" an activity, it's highly likely that, at least in the 8th Circuit, the activity probably isn't a compensable principal activity that starts the workday.

This article was edited by Jane Pfeifle of Lynn, Jackson, Shultz & Lebrun, P.C.