By Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

iStock_000045960778_MediumSeyfarth Synopsis: Even in the face of a collective bargaining agreement the State of Arkansas reconsiders whether employees should be compensated for time they spend putting on and taking off required protective gear.

A divided Arkansas Supreme Court recently ruled that a food manufacturing company violated Arkansas state law by not paying production workers for time they spent putting on and taking off required protective gear. Gerber Prods. Co. v. Hewitt, et al., 2016 Ark. 222 (May 26, 2016).

We had blogged previously about donning and doffing cases. See If It Looks Like Pants And It Walks Like Pants… Supreme Court Considers Definition of “Clothes” In Section 203(o) Of The FLSA, where the question before the Court was whether the term “clothes” in section 203(o) of the Federal Labor Standards Act — which allows employers to exclude time spent by their employees “changing clothes . . . at the beginning or end of each workday” from compensable time pursuant to the terms of or a custom or practice under a collective bargaining agreement — includes protective clothing. Also, Try This On For Size: Seventh Circuit Rejects Factory Workers’ Donning and Doffing Claims Based On Expansive View Of The “Workday”, where the Seventh Circuit affirmed the dismissal of the workers’ donning and doffing claims, with Judge Posner taking a broad view of the definition of “workday” and the applicability of section 203(o).

Igniting this controversy was DOL Issues New Interpretation of “Clothes” Under FLSA and Expands What Constitutes Compensable Activity, where the DOL’s then new interpretation concluded that the FLSA exception for changing “clothes” did not include protective gear. Specifically, the interpretation states that the definition of “clothes” does not include “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job.”

In this new state case the employees alleged that the company failed to compensate them for their time spent donning and doffing “clothing and protective gear, sanitizing clothing and equipment, washing their hands, and walking to and from their work stations.” The employees asserted that these activities were “necessary and indispensable” to their principal work, but the employees were not compensated.

In a 4-3 decision, the court affirmed the appellate court decision that the company was liable for approximately $3 million in unpaid overtime and interest to workers at its Arkansas plant.

The company had argued that the FLSA exception excused its failure to pay for donning and doffing time prior to 2013 because the union representing the workers signed collective bargaining agreements that made such time non-compensable. The Court, though, found that Arkansas Minimum Wage Act doesn’t incorporate the FLSA exception. Instead it ruled that the approximately 14 to 20 minutes that the workers spent daily putting on and taking off protective gear is compensable under the state law.

In the dissent, Justice Wood argued that the majority’s opinion will open the floodgates to litigation, and that it “undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements.” Particularly, the Justice noted that:

For this court to abrogate the collectively bargained agreements between Gerber and its employees, which have customarily and generally excluded donning and doffing from the rate of pay, and afford the employees a windfall, is unjustified, particularly when the agreements do not violate the minimum-wage requirement.

For employers, certainly those in Arkansas, this case indicates that it may be appropriate to re-examine collective bargaining agreements, company safety programs and policies, and corporate employees pay policies.