Salazar v. BUTTERBALL, LLC

FILED
United States Court of Appeals
Tenth Circuit

July 5, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLARA E. SALAZAR; JUANITA
YBARRA, (Proposed Collective and
Class Action Representatives), on
behalf of themselves and others
similarly situated,

Plaintiffs-Appellants,
v. No. 10-1154
BUTTERBALL, LLC,

Defendant-Appellee.
____________________

NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION; UNITED
FOOD AND COMMERCIAL
WORKERS, LOCAL UNION NO. 7R;
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL
UNION,

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:08-CV-02071-MSK-CBS)

T. Joseph Snodgrass, (Kelly Swanson and Troy F. Tatting of Larson • King, LLP,
St. Paul, Minnesota; J. Gordon Rudd, Jr., Anne T. Regan and Patricia A.
Bloodgood of Zimmerman Reed, PLLP, Minneapolis, Minnesota; Stanley M.
Gosch and Richard Rosenblatt of Richard Rosenblatt & Assoc., LLC, Greenwood
Village, Colorado, with him on the briefs), of Larson • King, LLP, St. Paul,
Minnesota, for Plaintiff-Appellants.

Stephen X. Munger, (Eric R. Magnus of Jackson Lewis LLP, Atlanta, Georgia;
Ryan P. Lessmann of Jackson Lewis LLP, Denver, Colorado, with him on the
brief), of Jackson Lewis, LLP, Atlanta, Georgia, for Defendant-Appellee.

Lin Chan and David Borgen of Goldstein, Demchak, Baller, Borgen & Dardarian,
Oakland, California, and David Lichtenstein, Denver, Colorado, filed a brief for
National Employment Lawyers Association as Amicus Curiae in support of
Plaintiff-Appellants.

Renee L. Bowser, Assistant General Counsel, United Food and Commercial
Workers International Union, Washington, D.C., and John P. Bowen, UFCW
Local 7R, Wheat Ridge, Colorado, filed a brief for United Food and Commercial
Workers International Union and United Food and Commercial Workers Union
Local 7R as Amici Curiae in support of Plaintiff-Appellants.

Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.

BRISCOE, Chief Judge.

In this case we are asked to decide whether donning and doffing poultry

processing workers’ personal protective equipment is “changing clothes” under 29

U.S.C. § 203(o) and whether a turkey processing plant is a food and beverage

industry employer under 7 Colo. Code Regs. § 1103-1:2. Plaintiffs/appellants

Clara Salazar and Juanita Ybarra (together, plaintiffs) brought claims on behalf of

hourly production employees at defendant/appellee Butterball, LLC’s (Butterball)

Longmont, Colorado turkey processing plant. Plaintiffs claim that Butterball’s

failure to compensate donning and doffing time violates the Fair Labor Standards

2
Act of 1938, 29 U.S.C. §§ 201-219 (FLSA), and Colorado Minimum Wage Order

27, 7 Colo. Code Regs. § 1103-1 et seq. (Wage Order 27). 1 The district court

entered summary judgment in Butterball’s favor based on determinations that

donning and doffing time was excluded from FLSA hours worked pursuant to 29

U.S.C. § 203(o) and that Wage Order 27 did not apply to Butterball. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Factual Background

Butterball’s Longmont plant produces turkey products, including cooked

ready-to-eat (RTE) turkey products. Butterball acquired the plant from ConAgra

Foods in 2006. Butterball retained the same workforce, management, and pay

practices that were in place during ConAgra’s ownership.

The plaintiffs worked at various times in the plant’s deboning, evisceration,

packaging, and quality assurance departments. They were required to don various

items of apparel and equipment prior to their shifts and to doff such items after

their shifts. Generally, production employees wore frocks, aprons, plastic

sleeves, gloves, cotton glove liners, boots or overshoes, hard hats, earplugs, and

safety glasses. When working in the deboning and evisceration areas, plaintiffs

1
The Colorado wage order at issue has been re-numbered several times. At
the time plaintiffs filed their complaint, it was number 24. This opinion will refer
to the wage order by its current number: 27.

3
also wore mesh gloves, knife holders, and arm guards. As the parties have done,

we refer to these items collectively as personal protective equipment, or PPE. See

Aplt. Br. at 3, Aple. Br. at 3-4.

Butterball, continuing ConAgra’s practice, has never paid most production

employees for donning and doffing time. 2 Aplt. Add. at 89. The plaintiffs are

aware that they have never been paid for donning and doffing time. Aple. Add.,

Vol. I at 7, 213.

Production employees at the plant are represented by United Food and

Commercial Workers Local 7 (UFCW 7 or the Union). ConAgra and UFCW 7

entered into a collective bargaining agreement (CBA) for the period of February

6, 2005 through February 2, 2008. Aplt. App., Vol. III at 7. Butterball and

UFCW 7 entered into a new CBA for the period of February 3, 2008 through

February 2, 2009. Id. at 62. As of April 1, 2009, the Union was working without

a contract, and the current status of negotiations is not evident from the record

presented. Aple. Add., Vol I at 186. Neither CBA discusses donning and doffing

pay or how hours worked are to be calculated.

On December 16, 2005, the Union filed a grievance claiming that

employees should be paid for donning and doffing time. ConAgra denied the

2
ConAgra paid employees in the live hang department an extra twenty
minutes per day. Butterball continued this practice. Neither plaintiff worked in
the live hang department, and the department was eliminated (along with the
deboning and evisceration departments) in November 2008.

4
grievance and the Union demanded arbitration on November 13, 2006. Aplt.

App., Vol. III at 115-17. However, arbitration did not occur. Butterball

presented evidence that the grievance had been resolved by April 2008. Id., Vol.

I at 463. On the other hand, the plaintiffs presented evidence that the Union

considered the grievance to be pending, at least as of June 1, 2007. Aplt. Add. at

73 (affidavit dated June 1, 2007). It is undisputed that the issue of donning and

doffing pay was not discussed during negotiations of either CBA.

The FLSA, Portal-to-Portal Act, and 29 U.S.C. § 203(o)

Congress enacted the FLSA in 1938 “to establish nationwide minimum

wage and maximum hours standards.” Moreau v. Klevenhagen, 508 U.S. 22, 25

(1993). Generally, the FLSA mandates that employees be paid a minimum wage

and paid at an overtime rate for hours worked in excess of forty in a workweek.

The statute does not define “work” or “workweek,” and the Supreme Court’s

early FLSA decisions interpreted those terms broadly. IBP, Inc. v. Alvarez, 546

U.S. 21, 25 (2005). In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-

91 (1946), the Supreme Court held that the “workweek” included “all time during

which an employee is necessarily required to be on the employer’s premises, on

duty or at a prescribed workplace . . . .” Congress enacted the Portal-to-Portal

Act, 29 U.S.C. §§ 251-62, in response to Mt. Clemens and other judicial decisions

that, in Congress’s view, interpreted the FLSA “in disregard of long-established

customs, practices, and contracts between employers and employees, thereby

5
creating wholly unexpected liabilities.” 29 U.S.C. § 251(a).

Among other things, the Portal-to-Portal Act provided that employers could

not be liable under the FLSA for failure to compensate time an employee spent

performing activities that were preliminary or postliminary to “the principal

activity or activities which such employee is required to perform.” 29 U.S.C. §

254(a). The Supreme Court interpreted this provision to mean that activities

performed prior or subsequent to a regular work shift are compensable if they are

“an integral and indispensable part of the principal activities for which covered

workmen are employed . . . .” Steiner v. Mitchell, 350 U.S. 247, 256 (1956). In

2005, the Supreme Court held that, assuming donning and doffing was an integral

and indispensable activity, any post-donning and pre-doffing walking time (i.e.,

between locker rooms and production areas) would be compensable under the

Portal-to-Portal Act. IBP, 546 U.S. at 36.

Congress amended the FLSA again in 1949 enacting, among other

provisions, what is now 29 U.S.C. § 203(o). Section 203(o) defines hours

worked:

Hours worked. – In determining for the purposes of sections 206 and
207 of this title [minimum wage and maximum hours] the hours for
which an employee is employed, there shall be excluded any time
spent in changing clothes or washing at the beginning or end of each
workday which was excluded from measured working time during the
week involved by the express terms of or by custom or practice under
a bona fide collective-bargaining agreement applicable to the
particular employee.

6
 Colorado Wage Order 27

The Colorado Minimum Wage Act, Colo. Rev. Stat. §§ 8-6-101 – 8-6-119,

prohibits employment of workers “for wages which are inadequate to supply the

necessary cost of living and to maintain the health of workers so employed” or

“under conditions of labor detrimental to [workers’] health or morals.” Colo.

Rev. Stat. § 8-6-104. The Act also delegates to the Colorado Department of

Labor the authority to set minimum wage and maximum hour standards. Colo.

Rev. Stat. § 8-6-106. Pursuant to this authority, the Colorado Department of

Labor issued Wage Order 27, which prescribes minimum wage and overtime

requirements for employees in the retail and service, food and beverage,

commercial support service, and health and medical industries. 7 Colo. Code

Regs. § 1103-1:1.

Procedural History

Plaintiffs filed a complaint in the United States District Court for the

District of Colorado, seeking to bring a collective action under the FLSA and a

class action under Colorado law for compensation for time spent “donning,

doffing, and sanitizing gear and equipment, and walking to and from the

production floor.” Aplt. App., Vol. I at 12-13. Butterball moved for summary

judgment on both claims. A magistrate judge issued a Report and

Recommendation determining that plaintiffs’ PPE was clothes under 29 U.S.C. §

203(o) and there was a custom or practice of nonpayment, and that Butterball was

7
not subject to Wage Order 27. The district court adopted the Report and

Recommendation and entered summary judgment in Butterball’s favor. Plaintiffs

appeal.

II

This court reviews the grant of summary judgment de novo, applying the

same standards as the district court. Gwinn v. Awmiller, 354 F.3d 1211, 1215

(10th Cir. 2004). Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). We review the record on summary judgment in

the light most favorable to the nonmoving party. Gwinn, 354 F.3d at 1215.

III

Plaintiffs contend that Butterball violated the FLSA by failing to

compensate them for donning and doffing time. Butterball argues that it is not

required to compensate donning and doffing time for the following reasons: it is

not work under the FLSA 3; it is excluded from FLSA “hours worked” by 29

U.S.C. § 203(o); it is not compensable pursuant to the Portal-to-Portal Act,

specifically 29 U.S.C. § 254(a); and it is de minimis.

3
In Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994), this court held that
donning and doffing non-unique PPE was not “work” under the FLSA. Because
we base our ruling on § 203(o) and not on the general definition of “work,” we
need not determine whether the Supreme Court’s IBP decision, 546 U.S. 21,
affects our holding in Reich. See n.4, infra.

8
 The district court based its FLSA ruling on § 203(o), and we do the same.

Section 203(o) excludes “any time spent changing clothes or washing” from “the

hours for which an employee is employed” if such time “was excluded from

measured working time during the week involved by the express terms of or by

custom or practice under a bona fide collective-bargaining agreement applicable

to the particular employee.” 29 U.S.C. § 203(o). We hold that donning and

doffing the PPE at issue in this case is changing clothes and that there is a custom

or practice of excluding donning and doffing time from measured working time

under the collective bargaining arrangement between the Union and Butterball.

We, therefore, affirm the district court’s ruling that Butterball did not violate the

FLSA by failing to pay plaintiffs for donning and doffing time.

“Changing Clothes”

The meaning of “changing clothes” under § 203(o) is a question of first

impression in this circuit. As with all statutory interpretation cases, we begin

with the language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002). If the statute has a “plain and unambiguous meaning with regard to the

particular dispute in the case” and the statutory scheme is coherent and consistent,

our inquiry ends. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “The

plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. at 341.

9
 We conclude that the term “changing clothes” in § 203(o) is ambiguous.

As evidenced by the differing interpretations of several courts and the United

States Department of Labor Wage and Hour Division (the Wage and Hour

Division), the word “clothing” is susceptible of multiple meanings, particularly in

the industrial labor context where specialized apparel and equipment is often

worn. The other circuit courts that have considered the meaning of “changing

clothes” under § 203(o) have reached differing conclusions. The Fourth, Fifth,

Sixth, Seventh, and Eleventh Circuits have held that donning and doffing PPE is

changing clothes within § 203(o). See Spoerle v. Kraft Foods Global, Inc., 614

F.3d 427, 428 (7th Cir. 2010) (meat production workers’ boots, hard hats, smocks,

and hair nets), cert. denied, 131 S. Ct. 933 (2011); Franklin v. Kellogg Co., 619

F.3d 604, 614-15 (6th Cir. 2010) (frozen food workers’ uniforms and PPE,

including hair nets, safety glasses, ear plugs, and hard hats); Sepulveda v. Allen

Family Foods, Inc., 591 F.3d 209, 215-18 (4th Cir. 2009) (poultry workers’ PPE),

cert. denied, 131 S. Ct. 187 (2010); Anderson v. Cagle’s, Inc., 488 F.3d 945, 955-

56 (11th Cir. 2007) (poultry workers’ PPE); Bejil v. Ethicon, Inc., 269 F.3d 477,

480 n.3 (5th Cir. 2001) (lab coats, hair covers, and shoe covers). The Ninth

Circuit has reached a different conclusion, holding that meat production workers’

unique PPE (for example, Kevlar gloves) is not clothes under § 203(o). 4 Alvarez

4
The Ninth Circuit also held that donning and doffing unique and non-
(continued...)

10
v. IBP, Inc., 339 F.3d 894, 904-05 (9th Cir. 2003), aff’d on other grounds, IBP,

546 U.S. 21.

The Wage and Hour Division has repeatedly shifted its position when asked

to interpret the meaning of “changing clothes.” “The [Wage and Hour Division]

issues opinion letters to explain the requirements of the FLSA and its regulations

and how they apply to particular circumstances.” In re Wal-Mart Stores, Inc., 395

F.3d 1177, 1184 (10th Cir. 2005) (internal quotation and alterations omitted). In

1997, it issued an opinion letter determining that “clothes” in § 203(o) did not

encompass “protective safety equipment which is generally worn over . . . apparel

and may be cumbersome in nature.” Wage and Hour Division, Opinion Letter

Fair Labor Standards Act dated Dec. 3, 2007, 1997 WL 998048. The Division

then reversed this position in 2002, determining upon “a reexamination of the

statute and legislative history,” that “changing clothes” applies to “the putting on

and taking off of the protective safety equipment typically worn in the meat

packing industry . . . .” Wage and Hour Division, Opinion Letter Fair Labor

Standards Act FLSA 2002-2 dated June 6, 2002, 2002 WL 33941766. In 2007,

4
(...continued)
unique PPE (for example, hard hats and safety goggles) was compensable under
the Portal-to-Portal Act because it was integral and indispensable to primary
activities, but that donning and doffing non-unique PPE was ultimately not
compensable because it was de minimis. Alvarez, 339 F.3d at 903-05. The
Supreme Court affirmed the Ninth Circuit’s holding regarding unique PPE and the
Portal-to-Portal Act, and did not discuss the Ninth Circuit’s holdings regarding §
203(o) or the de minimis exception. IBP, 546 U.S. at 30.

11
the Wage and Hour Division declined to alter its interpretation in light of the

Ninth Circuit’s Alvarez decision. Wage and Hour Division, Opinion Letter Fair

Labor Standards Act FLSA 2007-10 dated May 14, 2007, 2007 WL 2066454.

Then, in 2010 (after the district court issued its ruling in the instant case), the

Division reverted to its previous interpretation and determined that § 203(o) “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.” Wage and Hour Division, Opinion

Letter Fair Labor Standards Act FLSA 2010-2 dated June 16, 2010, 2010 WL

2468195.

Having determined that “changing clothes” is ambiguous, “we are left to

resolve that ambiguity.” Robinson, 519 U.S. at 345. The first question is

whether we must construe the term in the plaintiffs’ favor. In Arnold v. Ben

Kanowsky, Inc., 361 U.S. 388, 392 (1960), the Supreme Court stated that

exemptions to the FLSA are to be construed narrowly against the employers

seeking to assert them. The Court was referring specifically to section 13 of the

FLSA (29 U.S.C. § 213), which is titled “Exemptions.” The plaintiffs argue that

§ 203(o) is an exemption from the FLSA, notwithstanding the fact that it is in the

definitions section (section 3 of the FLSA) and not in the exemptions section.

The Fifth, Sixth, and Eleventh Circuits have rejected the plaintiffs’ argument and

held that § 203(o) is not an exemption. Allen v. McWayne, Inc., 593 F.3d 449,

458 (5th Cir. 2010); Franklin, 619 F.3d at 612; Anderson, 488 F.3d at 957; cf.

12
Adams v. United States, 471 F.3d 1321, 1325-26 (Fed. Cir. 2006) (holding that

the Portal-to-Portal Act’s exclusion of certain activities from FLSA coverage was

not an exemption and did not need to be construed against the employer). On the

other hand, the Ninth Circuit assumed, without analysis, that § 203(o) is an

exemption and must be read narrowly. Alvarez, 339 F.3d at 905.

We conclude that § 203(o) is not an exemption and, therefore, we do not

read it narrowly or in the plaintiffs’ favor. Section 203(o) differs from the

exemptions in 29 U.S.C. § 213 in three important respects. First, it is part of the

definition of hours worked and is not specifically designated as an exemption.

Second, § 203(o) removes only particular discrete activities from the definition of

hours worked, whereas the § 213 exemptions remove entire classes of employees

from FLSA coverage. 5 Employees who are potentially affected by § 203(o) are

still entitled to the bulk of the FLSA’s protections, whereas employees affected

by an FLSA exemption are entitled to no FLSA protections at all. Third, § 203(o)

does not exactly remove discrete activities from FLSA coverage; it gives

employers and employees the option of removing those activities from FLSA

5
We note that, in Nichols v. Hurley, 921 F.2d 1101, 1103 (10th Cir. 1990)
(per curiam), this court assumed, without analysis, that 29 U.S.C. §
203(e)(2)(C)(ii)(II) (excluding personal staff of elected officials from the
definition of employee), was an exemption from the FLSA that must be construed
narrowly. Nichols is not persuasive here because § 203(e)(2)(C)(ii)(II) has
greater similarity to a § 213 exemption than does § 203(o). Section
203(e)(2)(C)(ii)(II) excludes an entire class of employees from the FLSA’s
coverage.

13
coverage through collective bargaining.

We hold that “clothes” under § 203(o) includes the PPE worn by the

plaintiffs in this case. An expansive construction is consistent with the ordinary

meaning of the word “clothes,” and makes more sense than a construction that

would differentiate between apparel and equipment designed for safety purposes

and other apparel and equipment, or between non-unique and unique apparel and

equipment.

As a preliminary matter, we decline to defer to the Wage and Hour

Division’s most recent interpretation of § 203(o) or, for that matter, any of the

Wage and Hour Division’s interpretations. Agency opinion letters are entitled to

respect under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to the extent that

they have the “power to persuade.” Clements v. Serco, Inc., 530 F.3d 1224, 1229

(10th Cir. 2008). Where, as here, an agency repeatedly alters its interpretation of

a statute, the persuasive power of those interpretations is diminished. See Pacheo

v. Whiting Farms, Inc., 365 F.3d 1199, 1205 n.3 (10th Cir. 2004) (“An agency

interpretation that conflicts with the agency’s earlier interpretation is . . . entitled

to considerably less deference than a consistently held position.”). Further, for

the reasons discussed below, we do not find the agency’s current position

particularly well-reasoned. Accord Franklin, 619 F.3d at 614 (declining to defer

to the 2010 opinion letter because the agency’s position has changed repeatedly

and because the court found the letter’s interpretation to be inconsistent with the

14
language of the statute).

We begin our analysis of § 203(o) “with the language employed by

Congress and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 129

S. Ct. 2343, 2350 (2009) (internal quotation omitted). The ordinary meaning of

the term “clothes” is quite broad and contemplates items or garments worn by a

person. See, e.g., Oxford Univ. Press, Oxford English Dictionary (2010 ed.)

(defining clothes as “covering for the person; wearing apparel; dress, raiment

vesture”); Sepulveda, 591 F.3d at 214-15 (“[Clothing is] covering for the human

body or garments in general: all the garments and accessories worn by a person at

any one time.” (quoting Webster’s Third New Int’l Dictionary 428 (1986 ed.)). 6

The ordinary meaning of “clothes” would appear to encompass all the items of

PPE worn by plaintiffs. Accord Sepulveda, 591 F.3d at 215; Franklin, 619 F.3d at

614. PPE items are worn on and cover the body. Smocks, boots, sleeves, gloves

and hats would, in other contexts (such as if worn on the street), obviously be

considered clothes.

6
The Wage and Hour Division has criticized courts’ reliance on dictionary
definitions of “clothes.” Wage and Hour Division, Opinion Letter Fair Labor
Standards Act FLSA 2010-2 dated June 16, 2010, 2010 WL 2468195. However,
the Supreme Court regularly cites dictionary definitions when explaining the
ordinary or common meaning of a word. See, e.g., Milner v. Dep’t of Navy, 131
S. Ct. 1259, 1264 (2011); CSX Transp., Inc. v. Ala. Dep’t of Revenue, 131 S. Ct.
1101, 1108 (2011); Burlington N. and Santa Fe Ry. Co. v. United States, 129 S.
Ct. 1870, 1879 (2009).

15
 Plaintiffs contend that “clothes” does not include PPE because PPE is

designed to protect against workplace hazards, serves specialized functions, and is

required by the employer or by law. Similarly, the Wage and Hour Division

currently distinguishes between everyday clothes and items required by law or by

the employer. We do not find this distinction particularly coherent or workable.

Accord Franklin, 619 F.3d at 614 (“[W]e see no reason to distinguish between

protective and non-protective clothes.”); Sepulveda, 591 F.3d at 215 (failing “to

see why the term ‘clothes’ would refer only to ‘ordinary’ or ‘street’ clothes,” and

rejecting a distinction between uniforms and protective clothes); Anderson, 488

F.3d at 956 (rejecting plaintiffs’ contention that § 203(o) did not apply to any

protective clothing). Many “everyday” items of clothing are worn for safety or

protective purposes, including shoes. Cf. Sepulveda, 591 F.3d at 215 (“[T]he

steel-toe shoes at issue here could be reasonably classified as either ‘normal’

clothes or ‘protective gear.’”). An approach that excludes apparel with functional

aspects from “clothes” is far afield from any common understanding of the word

because clothes are largely functional. Further, many items of work apparel that

look like or replace traditional street clothes, such as scrubs or uniforms, are

required by the employer and serve a work-related purpose. See Turner v. City of

Phila., 262 F.3d 222, 224 (3d Cir. 2001) (explaining that § 203 “provides a

specific exclusion from the calculation of hours worked for clothes and uniform

change time” (emphasis added)). Congress specifically contemplated that the

16
clothes being changed would be worn for work purposes because § 203(o)

discusses clothes changing at the beginning and end of the workday. See

Franklin, 619 F.3d at 614 (“[B]ecause the statute indicates that § 203(o) applies to

changing into clothes worn during the workday, Congress was referring to clothes

worn for the workday and not simply ‘ordinary’ clothes.”). Frocks, aprons,

sleeves, gloves, boots, and hard hats are clothes even though they serve specific

protective or sanitary functions or are required by Butterball. Cf. Reich, 38 F.3d

at 1126 n.1 (holding that donning and doffing non-unique PPE was not “work”

under the FLSA because it was analogous to “having a baseball player show up in

a uniform, a businessperson with a suit and tie, or a judge with a robe”).

In Alvarez, the Ninth Circuit made a slightly different distinction: between

generic protective clothing (or non-unique PPE), such as boots, hard hats, and

frocks, and unique PPE, such as mesh gloves or knife holders. 339 F.3d at 905.

Certainly, unique PPE is less similar to common clothing than non-unique PPE

because it does not look like or replace items that employees would normally

wear outside of work. We have recognized a distinction between unique and non-

unique PPE in a slightly different context. In Reich, we held that donning and

doffing unique PPE was “work” under the FLSA, whereas donning and doffing

non-unique PPE was not. 38 F.3d at 1126 (“[Unique PPE] items are heavy and

cumbersome, and it requires physical exertion, time, and a modicum of

concentration to put them on securely and properly.”).

17
 Nonetheless, we determine that the unique PPE worn by the plaintiffs in

this case is clothing under § 203(o). The plaintiffs’ unique PPE is not so

cumbersome, heavy, complicated, or otherwise different in kind from traditional

clothing that it should not be considered “clothes.” Cf. Franklin, 619 F.3d at 614-

15 (“We recognize that there may be some heavier protective equipment than

what is at issue here that is not clothing within the meaning of § 203(o).”). The

unique PPE in this case consists of mesh gloves, arm guards, and knife holders.

These items are quite similar to ordinary gloves, sleeves, and belts or holsters.

Thus, we conclude that all PPE at issue in this case is clothing under 29 U.S.C. §

203(o).

Plaintiffs make the policy-based argument that including PPE within §

203(o) would create a disincentive for employers or employees to use safety

equipment. We fail to see how leaving the compensability of donning and doffing

time to the collective bargaining process would have such an effect. Section

203(o)’s application has no bearing on whether PPE is required by law. We join

the majority of the circuits that have considered the issue, and hold that “clothes”

under 29 U.S.C. § 203(o) includes the PPE worn by plaintiffs in this case.

Custom or Practice

The parties disagree as to who bears the burden of proof to establish a

custom or practice under § 203(o). We need not decide this issue because

Butterball acknowledged before the district court that it had the burden of proof.

18
See Aplt. App., Vol. I at 71 (Butterball’s Mot. Summ. J.) (“To prove that § 203(o)

applies in this case, Butterball must show that 1) the items at issue are “clothes”

and 2) under the governing CBA, there is a ‘custom or practice’ of nonpayment

for donning and doffing of these ‘clothes.’” (emphasis added)). Further, who

carries the burden of proof here is not dispositive. Assuming Butterball bears the

burden of proof, we conclude that it presented sufficient evidence to meet this

burden.

The plain language of § 203(o) contemplates that non-payment of donning

and doffing time may be an express or implied term of a CBA. A mutually-

accepted custom or practice may become an implied CBA term. See Turner, 262

F.3d at 226 (“We view the phrase [custom or practice under a bona fide

collective-bargaining agreement] as simply restating the well-established

principle of labor law that a particular custom or practice can become an implied

term of a labor agreement through a prolonged period of acquiescence.”); see also

Intermountain Rural Elec. Ass’n v. N.L.R.B., 984 F.2d 1562, 1568 (10th Cir.

1993) (“[A]n uninterrupted and accepted custom may become an implied term and

condition of employment by mutual consent of the parties.”); Sunoco, Inc.

(R&M), 349 N.L.R.B. 240, 244 (2007) (“An employer’s practices, even if not

required by a [CBA], which are regular and long-standing, rather than random or

intermittent, become terms and conditions of unit employees’ employment . . . .”).

We hold that, where a CBA is silent on the issue and there is no other agreement

19
regarding donning and doffing pay, a custom or practice of non-compensation

exists for § 203(o) purposes if there was an established practice of non-

compensation prior to the execution of the CBA. See Franklin, 619 F.3d at 617-

18 (finding a custom or practice where the employer had not paid donning and

doffing time for at least nineteen years and the union knew this); Anderson, 488

F.3d at 958-59 (“[W]e believe that a policy concerning compensation (or

noncompensation, as the case may be) for clothes changing, written or unwritten,

in force or effect at the time a CBA was executed satisfies § 203(o)’s requirement

of a ‘custom or practice under a bona fide’ CBA.”). Under such circumstances,

union acquiescence can be inferred from acceptance of a CBA that leaves the

status quo unchanged.

We have little trouble concluding that a custom or practice of non-payment

for donning and doffing time existed in this case. It is undisputed that Butterball

has never paid most employees for donning and doffing time, 7 and that plaintiffs

knew this. This practice occurred regularly and frequently (in fact, every pay

period), such that employees could reasonably expect it to continue. See Sunoco,

349 N.L.R.B. at 244 (“A past practice must occur with such regularity and

frequency that employees could reasonably expect the ‘practice’ to continue or

reoccur on a regular and consistent basis.”), quoted in UFCW Br. at 7. Plaintiffs

7
The evidence regarding the live hang employees simply shows that there
was a different custom or practice for those employees.

20
cannot seriously contend that, at least until the 2005 grievance was filed, there

was not a mutually accepted custom or practice of non-compensation.

Plaintiffs argue that the filing of the grievance extinguished any Union

acceptance of the custom or practice. Butterball argues that the Union acquiesced

because it abandoned or settled the grievance. 8 We conclude that the resolution

of the grievance is immaterial because it is undisputed that Butterball and the

Union entered into a new CBA in 2008 — after the grievance was filed. Despite

the parties’ knowledge of the non-compensation practice and the Union’s apparent

prior dissatisfaction with that practice, the parties did not raise the issue during

negotiations or incorporate it into the 2008 CBA. There is no evidence to suggest

that the Union and Butterball agreed to defer resolution of the donning and

doffing issue when negotiating the 2008 CBA. 9 By failing to negotiate over the

pre-existing practice of non-payment under these circumstances, the Union

8
Plaintiffs make the somewhat incomprehensible argument that the failure
to arbitrate is meaningless because the grievance was not arbitrable in the first
place. See Aplt. Br. at 27. We do not consider this argument because it was
raised for the first time on appeal. Tele-Commc’ns, Inc. v. C.I.R., 104 F.3d 1229,
1233 (10th Cir. 1997) (“[W]e should not be considered a ‘second shot’ forum, a
forum where secondary, back-up theories may be mounted for the first time.”).
For the same reason, we decline to consider plaintiffs’ argument that they could
not bargain over donning and doffing time because Butterball was required to
compensate such time under Colorado law. See Aplt. Br. at 24-25. Further, we
reject the premise upon which this argument is based in Part IV, infra.
9
Further, there is no evidence that the Union was actively pursuing the
donning and doffing grievance. This is not a case where, for example, arbitration
was ongoing while CBA negotiations were underway.

21
acquiesced in the continuation of that practice under the new CBA. Contrary to

plaintiffs’ contention, acquiescence was not a fact issue for the jury in this case

because there are no other inferences to be drawn from the undisputed evidence.

Plaintiffs and the UFCW argue that this view of a custom or practice

essentially requires unionized employees to “opt in” to statutory rights or

“bargain for that which they would otherwise be entitled.” See Aplt. Br. at 31,

33; UFCW Br. at 10. This argument ignores the fact that § 203(o) makes donning

and doffing time a subject of bargaining, rather than a guaranteed statutory right.

The function of § 203(o) is to leave donning and doffing pay to negotiation. Our

determination that silence in CBAs coupled with a pre-existing practice amounts

to a custom or practice under § 203(o) does not necessarily require unions to “opt

in.” It requires the party who wishes to change the status quo to have that change

memorialized in a CBA, or file a successful grievance. Here, the plaintiffs seek a

change from the established practice at the Longmont plant. If, instead,

Butterball had previously paid for donning and doffing time, it could not

unilaterally change that practice. Additionally, nothing in this opinion prevents

the Union from bargaining over donning and doffing pay in the future or filing

another grievance. A determination that the Union accepted the practice of non-

payment for donning and doffing time does not amount to a finding that the Union

waived any statutory rights or any right to negotiate in the future.

We affirm the district court’s ruling that donning and doffing the PPE at

22
issue in this case is “changing clothes” and that there was a custom or practice of

not compensating that time at the Longmont plant. Thus, donning and doffing

time is not “hours worked” pursuant to 29 U.S.C. § 203(o) and Butterball did not

violate the FLSA by failing to compensate plaintiffs for donning and doffing

time.

Miscellaneous FLSA issues

Plaintiffs brought claims not only for pre-and post-shift donning and

doffing time, but also for donning and doffing time during their breaks. Section

203(o) applies only to changing clothes that occurs at the beginning and end of

the workday and, thus, would not apply to donning and doffing during break time.

See Burks v. Equity Gp.-Eufala Div., LLC, 571 F. Supp. 2d 1235, 1247 (M.D.

Ala. 2008) (holding that § 203(o) did not apply to donning and doffing during

unpaid meal/rest breaks). Section 203(o) also does not apply to sanitizing or

walking time. Nonetheless, the magistrate judge recommended granting summary

judgment on all of plaintiffs’ FLSA claims based on § 203(o). The plaintiffs

failed to object to this aspect of the Report and Recommendation and, thus,

plaintiffs have forfeited any claims to mid-day donning and doffing, sanitizing,

and walking time. See United States v. 2121 E. 30th St., Tulsa, Okla., 73 F.3d

1057, 1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue

for de novo review by the district court or for appellate review.”).

23
 IV

Plaintiffs claim that Butterball’s failure to compensate donning and doffing

time violates Colorado law, specifically Wage Order 27. Wage Order 27

mandates a minimum wage and overtime compensation for hours worked in

excess of forty for employees in the retail and service, food and beverage,

commercial support service, and health and medical industries. Assuming for the

sake of argument that donning and doffing time is “time worked” under Colorado

law, 10 we affirm the district court’s entry of summary judgment on plaintiffs’

Colorado law claim because Butterball is not an employer in the industries

covered by Wage Order 27.

Plaintiffs argue that Butterball is subject to Wage Order 27 because it is a

food and beverage industry employer. A food and beverage employer is:

any business or enterprise that prepares and offers for sale, food or
beverages for consumption either on or off the premises. Such
business or enterprise includes but is not limited to: restaurants,
snack bars, drinking establishments, catering services, fast-food
businesses, country clubs and any other business or establishment
required to have a food or liquor license or permit, and includes any
employee who is engaged in the performance of work connected with
or incidental to such business or enterprise, including office
personnel.

7 Colo. Code Regs. § 1103-1:2. Plaintiffs argue that Butterball fits this definition

because it produces food, including RTE turkey products, for consumption.

10
Colorado law does not have a statutory equivalent to 29 U.S.C. § 203(o).

24
Butterball argues that the definition contemplates retail-type food and beverage

enterprises, rather than wholesale or industrial ones.

The interpretation and application of Wage Order 27 is a matter of

Colorado law. We apply Colorado rules of construction to determine whether

Butterball is a food and beverage industry employer. The primary objective of

statutory construction “is to effectuate the intent of the General Assembly by

looking to the plain meaning of the language used, considered within the context

of the statute as a whole.” Bly v. Story, 241 P.3d 529, 533 (Colo. 2010). If the

language is ambiguous, Colorado courts look beyond that language “for other

evidence of legislative intent and purpose, such as legislative history or other

rules of statutory construction.” Crandall v. City and Cnty. of Denver, 238 P.3d

659, 662 (Colo. 2010).

Reading the food and beverage industry definition as a whole, it is plain

that food and beverage employers are those that sell food directly to the

consuming public, rather than for resale. While a wholesale food product

manufacturer like Butterball “prepares and offers for sale, food or beverages,” it

does not prepare or sell those items “for consumption either on or off the

premises.” Butterball’s food products are prepared for eventual consumption

(after all, they are food), but they are not sold for consumption. 11 They are sold

11
This is the most plausible explanation for the inclusion of the phrase “for
(continued...)

25
for resale. The examples listed in the second sentence of the definition support

this interpretation. A common feature of restaurants, snack bars, and catering

services is that they all provide food to the end consumer. In contrast, food

manufacturers or producers like Butterball sell products to restaurants and grocery

stores. 12 In further contrast to the example establishments, Butterball is not

required to maintain a food or beverage license. The Longmont plant is registered

as a wholesale food manufacturing and/or storage facility pursuant to Colo. Rev.

Stat. § 25-5-426. Aple. Add., Vol. II at 241-42.

Plaintiffs cite to a Colorado Division of Labor 2009 advisory bulletin which

states that “a bakery that operates on a retail or wholesale basis and prepares and

offers food for sale or consumption on or off its premises is covered by [Wage

Order 27].” Aplt. Add. at 18. Plaintiffs argue that the bulletin’s inclusion of

wholesale bakeries means that Wage Order 27 applies to wholesale food

11
(...continued)
consumption.” The plaintiffs argue that the phrase excludes food transportation
and storage. See Aplt. Br. at 16. However, the word “prepares” would have
provided the same limitation because transporters do not prepare food. As
plaintiffs point out in their reply brief, “food” is, by definition, intended for
consumption. See Aplt. Reply Br. at 1-2 (citing Colo. Rev. Stat. § 25-4-1602).
Thus, the “for consumption” language must mean something other than reiterating
the definition of food.
12
The fact that Butterball occasionally sells items produced at the plant
directly to employees does not convert Butterball into a retail food establishment.
Similarly, the fact that Butterball makes RTE products which require no further
preparation before consumption does not convert it into a retail food
establishment.

26
manufacturers like Butterball. We find this argument unpersuasive. First, the

Division of Labor’s fact sheet clearly states that the Wage Order does not apply to

“industries such as construction, manufacturing, wholesale.” Aple. Add. at 244.

While Wage Order 27 might apply to bakeries that do some wholesale business,

there is no indication that it applies more generally to all wholesale food

producers. Second, the bakery in the advisory bulletin example—whether retail

or wholesale—also “prepares and offers food for sale or consumption on or off its

premises . . . .” This language mirrors the language in Wage Order 27 itself and

suggests that the bakery provides food directly to the consuming public rather

than just to distributors.

Plaintiffs also argue that an interpretation limiting food and beverage

enterprises to those businesses that sell food products to the ultimate consumer is

incorrect because such businesses are already covered by the “retail and service”

category in Wage Order 27. See Aplt. Br. at 13. “Retail and service” businesses

are those that sell “any service, commodity, article, good, real estate, wares, or

merchandise to the consuming public.” 7 Colo. Code Regs. §1103-1:2. Even if

plaintiffs had made this argument to the district court, we would find it lacked

merit. Restaurants and snack bars—which are specifically enumerated as food or

beverage employers—also fit the retail and service definition because they sell

goods to the consuming public. There is no evidence to suggest that the Colorado

Division of Labor intended each industry definition to be mutually exclusive. We

27
affirm the district court’s entry of summary judgment on plaintiffs’ state law

claim because Butterball is not subject to Wage Order 27.

V

The judgment of the district court is AFFIRMED. Plaintiffs’ motion to

strike, and Butterball’s motion to supplement the record, are both DENIED as

moot.

28