Jottings By An Employer's Lawyer

Wednesday, September 01, 2010

Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says

Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].

Looking to determine the meaning of the phrase "changing clothes" in § 203(o) of the FLSA, the Court surveyed the DOL's view of that portion of the FLSA and found the following:
  • 1997 Opinion Letter - "clothes" in section 3(o) does not encompass protective equipment and section 3(o) is an exemption to the FLSA that should be read narrowly;
  • 2001 Opinion Letter - reiterated the position taken in the 1997 Letter;
  • 2002 Opinion Letter -  "changing clothes" in section 3(o) refers to the putting on and taking off the protective safety equipment typically worn in the meatpacking industry;
  • 2007 Opinion Letter - reiterated the position of the 2002 Letter;
  • June 16, 2010 Administrator's Opinion - section 3(o) exemption does not extend to protective equipment worn by employees, that is required by law, by the employer, or due to the nature of the job.
Looking at this revolving door of opinions, the Court gave them what seems to me to be the appropriate amount of deference ---none:
First, "an agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.
For the fans of burden of proof (the most important vestige of employment at will), the Court addressed the question of whether section 3(o) is an exemption to the FLSA where the employer has the burden or a definition, where the employee has the burden. Although it does so, the Court really did not have to look much further than which section of the FLSA section 3(o) appears, is it § 203, Definitions or § 213, Exemptions?

As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.

Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:
  • in determining whether changing clothes can be a "principal activity" which thus launches the "workday," the Court held that whether or not the time was compensable does not impact the determination;
  • here, changing clothes was a "principal activity".
Although there was a dissent, it did not seem to be over either of these principal issues. Still given the circuit split, it is not inconceivable that it could take the next step up.

If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.

My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight.  It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. My guess hope is that it is the same as the 6th Circuit here.

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The problem with giving no deference to agency flip-flops is that it gets us no closer to a consistent application of law. It trades agency flip-flopping every 4-to-8 years for a fragmented approach in which federal agency law differs by federal judicial circuit. Neither is good. See my post over at Workplace Prof Blog,
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