[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 11 2007
THOMAS K. KAHN
No. 06-10306
CLERK
D. C. Docket No. 00-00166 CV-WLS-1
LESSIE ANDERSON, BURNICE CRETCHER,
BRENDA GETER, DEXTER JACKSON,et al.,
Plaintiffs-Appellants,
versus
CAGLE’S, INC.,
CAGLE FOODS JV, LLC,
ALL DEFENDANTS,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Georgia
(June 11, 2007)
Before DUBINA and COX, Circuit Judges, and SCHLESINGER,* District Judge.
DUBINA, Circuit Judge:
____________________
*Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
Appellants, plaintiffs in the underlying action, appeal the district court’s
order decertifying their collective action alleging violations of the Fair Labor
Standards Act (“FLSA”) of 1938, as amended, 29 U.S.C. §§ 201-219 (2000), and
severing the defendants, Cagle’s, Inc. (“Cagle’s”) and Cagle Foods JV, LLC
(“CFJV”),1 and its grant of summary judgment in favor of CFJV. Having
thoroughly reviewed the record and the parties’ briefs on appeal, and with the
benefit of oral argument, we affirm the district court’s order decertifying the
collective action and its grant of summary judgment in favor of CFJV. Therefore,
we need not and do not address the district court’s decision to sever the
defendants.
I. BACKGROUND
Cagle’s and CFJV (collectively “the employers”) are engaged in the
business of hatching, growing, slaughtering, and processing chickens for
distribution and eventual consumption. During the relevant time period, Cagle’s
owned and operated multiple production facilities located in Georgia and
Alabama. Prior to the relevant time period, in 1993, Cagle’s partnered with
1
CFJV is now known as Equity Group - Georgia Division, LLC. For the sake of simplicity,
we continue the district court’s practice of referring to the company as it was known at the time the
lawsuit was filed.
2
Executive Holdings, L.P., to create CFJV for the purpose of operating a
production facility in Camilla, Georgia, previously operated solely by Cagle’s.
The plaintiffs in the underlying action, some of whom are not parties to this
appeal, can be divided into four distinct groups: (1) three named plaintiffs who at
the time the lawsuit was filed were employed or had been employed directly by
Cagle’s in the company’s Macon, Georgia, and/or Pine Mountain Valley, Georgia,
plants (“named Cagle’s plaintiffs”); (2) opt-in plaintiffs who at the time they
joined the lawsuit were employed or had been employed directly by Cagle’s in any
of several plants, including the Macon and Pine Mountain Valley plants (“opt-in
Cagle’s plaintiffs”); (3) nine named plaintiffs who at the time the lawsuit was filed
were employed or had been employed directly by CFJV in the Camilla plant
(“named CFJV plaintiffs”); and (4) opt-in plaintiffs who at the time they joined the
lawsuit were employed or had been employed directly by CFJV in the Camilla
plant (“opt-in CFJV plaintiffs”).2
At the time the lawsuit was filed, the twelve named plaintiffs worked or had
worked on the employers’ production lines and were paid according to a line-time
method that calculates compensable time based on when the chicken to be
processed reaches the production line. Pay begins when the first chicken reaches
2
When referring to all but the opt-in plaintiffs, we utilize “the named plaintiffs.”
3
the production line. It ends when the last chicken reaches the production line.
As part of their jobs, the named plaintiffs are required to wear various
articles of protective clothing, including smocks, hair/beard nets, gloves, and
hearing protection, though the clothing required varies depending upon the
particular job responsibilities. The employers require employees to arrive before
line-time begins in order to don the clothing and remain after line-time ends to
doff the clothing. In addition, the named plaintiffs, who are represented by the
Retail, Wholesale, and Department Store Union (“RWDSU”), are required to
don/doff the protective clothing in conjunction with their breaks. Prior to the
adoption of the most recent collective bargaining agreement in 2003, the named
plaintiffs received no compensation for donning/doffing the protective clothing,
which they contend is compensable under the FLSA.
The named plaintiffs also challenged the employers’ line-time pay policy to
the extent that it interferes with their unpaid breaks. According to the named
plaintiffs, the employers require them to remain on the production line after line-
time has stopped, and breaks have begun, in order to process the last chicken on
the production line. This, too, the named plaintiffs contend, violates the FLSA.
4
The district court initially certified the collective action and facilitated
notice to would-be opt-in plaintiffs.3 In all, approximately 2,200 employees or
former employees of Cagle’s and/or CFJV joined the lawsuit. Of those who
joined, approximately 388 were later dismissed, 217 of whom the named plaintiffs
themselves sought to dismiss because their claims were not commensurate with
the named plaintiffs’ primary claims. Of the other 171 who were dismissed, 56
were dismissed because their claims fell outside the statute of limitations, and 115
were dismissed for failure to comply with discovery requests.
Following discovery, both Cagle’s and CFJV moved to sever the claims
against the respective defendants and decertify the collective action. The district
court granted the motions after finding that the putative plaintiff class members
remaining were not all similarly situated. Subsequently, both Cagle’s and CFJV
separately filed motions for summary judgment. Before the district court ruled on
the motions, however, the three named Cagle’s plaintiffs settled their claims, and,
accordingly, the district court denied as moot the summary judgment motion filed
by Cagle’s. The district court subsequently granted CFJV’s motion for summary
3
Unlike class actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which
potential class members may choose to opt out of the action, FLSA collective actions require
potential class members to notify the court of their desire to opt in to the action. 29 U.S.C. § 216(b)
(2000).
5
judgment after concluding that the time the named CFJV plaintiffs spent changing
in and out of their protective clothing at the beginning and end of the workday was
not compensable according to section 3(d) of the Fair Labor Standards
Amendments of 1949, Pub. L. No. 81-393, § 3(d), 63 Stat. 910, 911 (1949)
(codified at 29 U.S.C. § 203(o) (2000)) [“§ 203(o)”]. The district court then
entered judgment against the named CFJV plaintiffs on all of their claims.
The named CFJV plaintiffs filed a motion to alter or amend the judgment.
Before the district court ruled on that motion, however, the named CFJV plaintiffs
and all of the former opt-in plaintiffs joined in a motion to intervene to permit the
opt-in plaintiffs to appeal the district court’s orders decertifying the collective
action and severing the defendants. The named CFJV plaintiffs and the former
opt-in plaintiffs filed a notice of appeal on the same day they moved to intervene.
The district court denied the motion to intervene after concluding that it lacked
jurisdiction to grant the motion. The district court also denied the named CFJV
plaintiffs’ motion to alter or amend the judgment. Immediately thereafter, the
appellants, which do not include the named Cagle’s plaintiffs, amended their
notice of appeal to challenge these denials as well.
II. ISSUES
6
1. Whether we have subject matter jurisdiction over this appeal as it
relates to Cagle’s.
2. Whether the district court abused its discretion when it decertified the
collective action.
3. Whether the district court erred when it granted summary judgment in
favor of CFJV.4
III. STANDARDS OF REVIEW
We review a “grant of summary judgment de novo, drawing all [reasonable]
inferences in favor of the non-moving party.” Fin. Sec. Assurance, Inc. v.
Stephens, Inc., 450 F.3d 1257, 1269 (11th Cir. 2006). Summary judgment is
appropriate when “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
We review the district court’s decision to decertify the collective action for an
abuse of discretion. See, e.g., Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,
1219 (11th Cir. 2001).
IV. DISCUSSION
4
In an order issued shortly after oral argument, we concluded that the district court abused
its discretion in denying the motion to intervene. Anderson v. Cagles, Inc., No. 06-10306 (11th Cir.
Mar. 9, 2007) (order granting motion to intervene). We, therefore, granted the motion to intervene
and allowed the opt-in plaintiffs to submit briefs addressing decertification and severance. Id.
7
A. Jurisdiction
Cagle’s challenges our jurisdiction as well as the appellants’ standing to
name Cagle’s as a party to this appeal. Essentially, Cagle’s takes the position that
all claims against it were resolved when the district court adopted the settlement
agreement between Cagle’s and the named Cagle’s plaintiffs.
The arguments Cagle’s presents fail to acknowledge or address the named
and opt-in CFJV plaintiffs’ contention, which they have maintained throughout the
underlying action, that Cagle’s was their employer in conjunction with CFJV and,
thus, liable to them directly for FLSA violations. See 29 U.S.C. § 203(d), (g)
(2000) (defining, respectively, “employer” and “employ”); 29 U.S.C. § 216(b)
(2000) (prescribing a private right of action against employers who violate the
FLSA). Although the outcome of this opinion renders it unnecessary to address
the issue of joint liability, the merits of the arguments on appeal have no bearing
on the threshold question of our jurisdiction. See, e.g., Jackson v. Cintas Corp.,
425 F.3d 1313, 1316 (11th Cir. 2005) (describing jurisdiction as a “threshold
issue”).
Cagle’s focuses on the appellants’ ability to challenge the district court’s
adoption of the settlement agreement and the effects of the district court’s
severance order, which regrettably lacks explanation of both the district court’s
8
rationale and intent. Cagle’s does not offer any legal argument explaining why,
assuming the appellants’ joint liability theory is correct, this court nevertheless
would lack jurisdiction. The argument Cagle’s offers regarding the named and
opt-in CFJV plaintiffs’ standing is similarly lacking. The employers’ alleged joint
liability is directly at issue. Therefore, we have jurisdiction over Cagle’s, and the
named and opt-in CFJV plaintiffs have standing to name Cagle’s as a party to this
appeal. See 28 U.S.C. § 1291 (2000) (prescribing appellate jurisdiction over final
decisions of district courts); Knight v. Alabama, 14 F.3d 1534, 1556 (11th Cir.
1994) (“[A] litigant who is aggrieved by [a] judgment or order may appeal.”
(internal quotation & citation omitted)).
B. Decertification
The district court engaged in a two-stage analysis to determine whether a
collective action was proper. At the first stage, the district court determined that
the plaintiffs were similarly situated based primarily on the named plaintiffs’
“detailed allegations,” which established essentially “the same job requirements
and almost identical treatment” among the group of employees defined in the
collective-action notice the district court ultimately approved. Importantly, the
allegations were supported to some extent by the employers’ “admissions, and
other documentary evidence.” The district court, therefore, certified the collective
9
action, but only conditionally, noting the possibility of later decertifying the
collective action upon a proper motion filed by the employers “[a]fter discovery is
substantially completed and the matter is ready for trial.”
Following discovery, the employers separately filed motions to decertify the
collective action. The district court granted the motions after determining that the
opt-in plaintiffs were not similarly situated to the named plaintiffs. Specifically,
the court found that “[n]amed plaintiffs essentially employed by a single employer,
based on the discovery before the Court, cannot fairly and adequately represent the
variously assigned employees, the wide variety of work assignments and varied
compensation structures affecting the purported class.” In its analysis, the district
court contrasted the employers’ independent identities, locations, and work forces;
the various methods by which the putative class members were compensated; and
the protective clothing the putative class members were required to wear.
The appellants contend that the district court applied an incorrect standard
for determining whether the opt-in and named plaintiffs are similarly situated.
Although they do not challenge the district court’s two-stage approach, they do
challenge the district court’s view of the facts and go so far as to accuse the
district court of exaggerating the distinctions among the putative class members.
Their arguments lack merit.
10
To maintain a collective action under the FLSA, “plaintiffs must
demonstrate that they are ‘similarly situated.’” Hipp, 252 F.3d at 1217; see also
29 U.S.C. § 216(b) (2000). The appellants rely for the most part on Hipp, as well
as an earlier case, Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir. 1996), both
of which discuss the “similarly situated” standard as well as the appropriate
analysis for making the necessary determination.
In Grayson, we interpreted the FLSA’s collective action provision to require
plaintiffs alleging age discrimination to “demonstrat[e] a reasonable basis for
their claim of class-wide discrimination . . . by making substantial allegations of
class-wide discrimination, that is, detailed allegations supported by affidavits
which successfully engage defendants’ affidavits to the contrary.”5 79 F.3d at
1097 (quotations & citations omitted). In Hipp, we followed Grayson, but we also
acknowledged, albeit somewhat implicitly, that the lenient standard we adopted in
the Grayson opinion may be most useful when making a certification decision
early in the litigation before discovery has been completed. Hipp, 252 F.3d at
1217-19. Hipp suggested that district courts deciding whether to certify a
collective action engage in a two-stage analysis as described in detail by the Fifth
5
The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2000),
expressly incorporates the FLSA’s opt-in collective action provision. 29 U.S.C. § 626(b).
11
Circuit Court of Appeals in Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir.
1995),6 from which the Hipp court quoted at length. See Hipp, 252 F.3d at 1218.
In Mooney, the court noted that at the initial stage the district court’s
decision to certify a class is based primarily on pleadings and affidavits. 54 F.3d
at 1213-14. In this respect, the first stage resembles the analysis conducted in the
Grayson decision. See Grayson, 79 F.3d at 1097-99.7 Accordingly, at the initial
stage, courts apply a “fairly lenient standard” for determining whether the
plaintiffs are truly similarly situated. Mooney, 54 F.3d at 1214, quoted in Hipp,
252 F.3d at 1218.
At the second stage, which is “typically precipitated by a motion for
‘decertification’ by the defendant usually filed after discovery is largely complete
and the matter is ready for trial[,] . . . the court has much more information on
which to base its decision, and makes a factual determination on the similarly
situated question.” Mooney, 54 F.3d at 1214, quoted in Hipp, 252 F.3d at 1218.
The “similarly situated” standard at the second stage is less “lenient” than at the
first, as is the plaintiffs’ burden in meeting the standard. See Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (describing the
6
Mooney was overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S.
90, 123 S. Ct. 2148 (2003).
7
The Grayson opinion did not mention Mooney or the two-stage approach.
12
“similarly situated” standard at the second stage as “stricter” than that applied at
the first stage and noting several relevant factors courts consider, including “(1)
disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendant[s] [that] appear to be individual to each
plaintiff; [and] (3) fairness and procedural considerations”), cert. denied, 536 U.S.
934, 122 S. Ct. 2614 (2002). Exactly how much less lenient we need not specify,
though logically the more material distinctions revealed by the evidence, the more
likely the district court is to decertify the collective action. As a district court in
this circuit has correctly observed, although the FLSA does not require potential
class members to hold identical positions, see Grayson, 79 F.3d at 1096, the
similarities necessary to maintain a collective action under § 216(b) must extend
“beyond the mere facts of job duties and pay provisions.” White v. Osmose, Inc.,
204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002). Otherwise, “it is doubtful that §
216(b) would further the interests of judicial economy, and it would undoubtedly
present a ready opportunity for abuse.” Id.
We also need not specify how plaintiffs’ burden of demonstrating that a
collective action is warranted differs at the second stage. It is sufficient to
conclude, again quite logically, that at the second stage plaintiffs may–the ultimate
decision rests largely within the district court’s discretion–not succeed in
13
maintaining a collective action under § 216(b) based solely on allegations and
affidavits, depending upon the evidence presented by the party seeking
decertification.
The appellants direct the court to evidence in the record they contend
undermines the district court’s conclusion. Whether the record contains evidence
arguably supporting the appellants’ position is not dispositive, however, and
whether we would have come to the same conclusion as the district court is not
relevant. “A district court abuses its discretion if it applies an incorrect legal
standard, follows improper procedures in making the determination, or makes
findings of fact that are clearly erroneous.” Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001). We recognize
in this instance that the district court had “a range of choice[,] . . . and so long as
its decision does not amount to a clear error of judgment we will not reverse even
if we would have gone the other way had the choice been ours to make.”
McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001).
We have thoroughly reviewed the record in this case and conclude that the
district court’s view of the evidence is reasonable, and its findings, therefore, are
14
not clearly erroneous.8 Furthermore, the district court’s decision to decertify the
collective action based on the distinctions noted in its opinion does not constitute
legal error. See Mooney, 54 F.3d at 1216 (concluding that the district court did not
abuse its discretion when it decertified a plaintiff class it had earlier conditionally
certified).9 Finally, the district court’s decision is not at odds with either Grayson
or Hipp, neither of which involved the degree or nature of disparities present in
8
Among the numerous distinctions, we find particularly important evidence that, unlike all
of the named plaintiffs, many of the opt-in plaintiffs are not unionized. A key defense in this case,
indeed the very defense that resulted in the district court granting summary judgment in favor of
CFJV, requires the existence of a collective bargaining agreement. 29 U.S.C. § 203(o). Obviously,
Cagle’s and CFJV could not raise this defense against the non-union opt-in plaintiffs, a point that
clearly undermines the appellants’ contention that the named plaintiffs could adequately represent
all of the opt-in plaintiffs. In addition, as a practical matter, the availability of defenses to some but
not all of the putative class members “clearly poses significant case management concerns.” In re
School Asbestos Litigation, 789 F.2d 996, 1011 (3d Cir. 1986) (concluding that “[w]hen, and if, the
district court is convinced that the litigation cannot be managed, decertification is proper”). And,
we rarely interfere with the district court’s case management decisions. See, e.g., Chudasama v.
Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (“[D]istrict courts enjoy broad discretion
in deciding how best to manage the cases before them.”).
9
We need not address the appellants’ contention that the district court was required to craft
subclasses of plaintiffs. Although the plaintiffs suggested to the district court the creation of
subclasses as a way to effectively manage the collective action, they failed to argue or cite legal
authority for the proposition that taking such action was compulsory. Therefore, they have waived
this issue. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-35 (11th Cir. 2004)
(discussing this circuit’s frequently applied rule that we will not consider “an issue . . . raised for the
first time in an appeal”).
15
the instant case.10 In conclusion, we hold that the district court did not abuse its
discretion when it decertified the collective action.
C. 29 U.S.C. § 203(o)
The district court granted CFJV’s motion for summary judgment after
determining that the named CFJV plaintiffs’ claims were foreclosed by § 203(o).
Section 203(o) excludes from the definition of “hours worked,” in the context of
the FLSA’s minimum wage and maximum hours provisions,11 “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.” § 203(o). The named CFJV
plaintiffs, the only plaintiffs remaining in light of our affirmance of the district
10
Grayson and Hipp are distinguishable for relevant reasons not already mentioned. Unlike
in this case, in Grayson, which concerned claims of age discrimination, we were faced with a broad
policy applied to a discreet group of employees (i.e. older store managers) emanating from the
highest levels of the defendant corporation, control of which was not in dispute. 79 F.3d at 1097-99.
Hipp was similar in this regard. 252 F.3d at 1219 (noting that, “[l]ike the plaintiffs in Grayson, . .
. Plaintiffs in this case all held the same job title, and they all alleged similar, though not identical,
discriminatory treatment”). Finally, and importantly, both Hipp and Grayson sought to determine
whether the district court abused its discretion when it certified a collective action, not, as in the case
before us, decertified a collective action. As we have previously noted, “denials of class certification
usually stand,” and “reliance on the possibility of a reversal of the court’s certification decision is
ordinarily not reasonable.” Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir.
1998).
11
29 U.S.C. §§ 206, 207 (2000), respectively.
16
court’s decertification order, contend that § 203(o) is inapplicable because it does
not address the donning/doffing of the protective clothing at issue. They further
contend that the employers’ failure to compensate for the donning/doffing of the
protective clothing was not a “custom or practice under a bona fide collective
bargaining agreement” (at least, prior to the adoption of the 2003 collective
bargaining agreement (“CBA”), which specifically addresses compensation for
“clothes changing”).
1. Changing Clothes
Relying on a fairly recent opinion from the Ninth Circuit Court of Appeals
squarely addressing this same issue, the named CFJV plaintiffs contend that the
act of donning/doffing the garments at issue does not constitute clothes
“changing,” and the garments themselves do not constitute “clothes.” See Alvarez
v. IBP, Inc., 339 F.3d 894, 904-05 (9th Cir. 2003), aff’d on other grounds, 546
U.S. 21, 126 S. Ct. 514 (2005).12 We disagree.
12
The named CFJV plaintiffs devote a great deal of attention to the Supreme Court’s opinion
affirming the Ninth Circuit in Alvarez. The Supreme Court’s opinion in Alvarez did not discuss
issues relevant to this appeal, however. The Court limited certiorari review to the question
“[w]hether walking that occurs between compensable clothes-changing time and the time employees
arrive at or depart from their actual work stations constitutes non-compensable ‘walking . . . to and
from the actual place of performance of the principal activity’ within the meaning of Section 4(a)”
of the Portal-to-Portal Act of 1947, 29 U.S.C. § 254(a) (2000). Petition for Writ of Certiorari,
Alvarez, 546 U.S. 21 (No. 03-1238); see also Alvarez, 543 U.S. 1144, 125 S. Ct. 1292 (2005)
(granting certiorari review). Thus, the Court did not address the application of § 203(o). See
generally Alvarez, 546 U.S. 21, 126 S. Ct. 514.
17
It is by now axiomatic that we interpret a statute with the aim of giving
effect to the drafters’ intent. See, e.g., United States v. Ballinger, 395 F.3d 1218,
1237 (11th Cir. 2005). We do this, first, by reference to the plain meaning of the
statute’s language, based on the words’ “ordinary, contemporary, common
meaning.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006)
(quoting Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314 (1979)).
The dictionary defines “clothes” as “clothing,” which itself is defined as
“covering for the human body or garments in general: all the garments and
accessories worn by a person at any one time.” Webster’s Third New International
Dictionary 428 (unabridged) (1986) [“Webster’s”]. This broad definition, we
believe, is consistent with the common understanding of the word, and we see no
need to distinguish uniforms from protective clothes, for example, worn in the
workplace.
We recognize that there may be limits to the application of § 203(o) based
on the nature or purpose of the garments at issue. Other courts have drawn
distinctions between general protective clothing, like the garments we are
concerned with in this case, and specialized protective clothing, such as plastic
shields, steel mesh gloves or, perhaps, spacesuits. See Alvarez, 339 F.3d at 903-05
(describing as nonunique “protective gear such as hardhats and safety goggles”;
18
holding that the donning/doffing of these items required only de minimis time and
effort and therefore were noncompensable; and noting later that the broad
dictionary definition would encompass all manner of items worn on the body,
including “armor, spacesuits, riot gear, or mascot costumes”); Reich v. IBP, Inc.,
38 F.3d 1123, 1125-26 (10th Cir. 1994) (concluding that the donning/doffing of
“standard safety equipment” such as “a pair of safety glasses, a pair of ear plugs
and a hard hat” was not “work” under the FLSA whereas “the donning, doffing,
and cleaning of the special protective gear used by the knife-workers” was). We
need not decide whether this distinction is legitimate in the context of § 203(o).
The district court in the instant case concluded that the employees required to wear
more specialized garments were compensated for the time necessary to don/doff
these items, and the named CFJV plaintiffs do not challenge this finding. In
addition, aside from their contention that § 203(o) does not apply to any protective
clothing, the named CFJV plaintiffs do not attempt to draw any finer distinctions.
Thus, we conclude that the garments the named CFJV plaintiffs were required to
don/doff to perform their job duties fit squarely within the commonly understood
definition of “clothes” as that term is used in § 203(o).
The definition of “change” is similarly broad. It means “to make different,”
that is “to modify in some particular way but short of conversion into something
19
else.” Webster’s 373. Thus, we see no logic in appellants’ unsupported argument
that “‘changing clothes’ can only refer to the specific act of arriving at work in one
set of clothes, removing those clothes, and putting on a different set of clothes.”
[Appellant’s Br. at 26]. Nothing in the statute’s language suggests that its
application turns on whether one must fully disrobe or exchange one shirt, for
example, for another. Therefore, we conclude that one need not exchange clothes
to change clothes for the purpose of applying § 203(o).
Our interpretation of the term “changing clothes” is consistent with that of
the agency responsible for administering the FLSA. In a recent advisory opinion,
the Administrator of the Wage and Hour Division of the Department of Labor
stated that, for the purpose of applying § 203(o), clothes “include items worn on
the body for covering, protection, or sanitation.” Fair Labor Standards Act, U.S.
Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr. No. FLSA2002-2 (June 6,
2002) (“Advisory Opinion I”). The named CFJV plaintiffs contend that the
Administrator’s opinion is not entitled to deference because it conflicts with
earlier Administrator advisory opinions that expressly excluded protective
clothing from § 203(o)’s coverage. See INS v. Cardoza-Fonseca, 480 U.S. 421,
446 n.30, 107 S. Ct. 1207, 1221 n.30 (1987) (“An agency interpretation of a
relevant provision which conflicts with the agency’s earlier interpretation is
20
entitled to considerably less deference than a consistently held agency view.”
(internal quotation omitted)). Contrast Advisory Opinion I with Fair Labor
Standards Act, U.S. Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr. (Jan.
15, 2001); Fair Labor Standards Act, U.S. Dep’t of Labor, Wage & Hour Div.
Advisory Op. Ltr. (Dec. 3, 1997). While less deference may be called for, the
most recent advisory opinion is entitled to some deference just the same.
Moreover, this most recent opinion provides a far more detailed rationale for its
conclusion than the previous opinions. Thus, all things being equal, the more
recent opinion is a great deal more persuasive than the earlier ones.
Relying on the Ninth Circuit’s opinion in Alvarez, the named CFJV
plaintiffs contend that the term “clothes” must be construed against the employers.
We acknowledge that our conclusion conflicts with the Ninth Circuit’s opinion.
The Ninth Circuit premised its conclusion in large part on its view that §
203(o) constitutes an “exemption” from FLSA requirements. Alvarez, 339 F.3d at
905. Consequently, the Ninth Circuit held that § 203(o) must be “narrowly
construed against . . . employers” and should not be applied “except in contexts
plainly and unmistakably within the given exemption’s terms and spirit.” Id.
(quotations omitted) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80
S. Ct. 453, 456 (1960); Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295, 79 S. Ct.
21
756, 759 (1959); Auer v. Robbins, 519 U.S. 452, 462, 117 S. Ct. 905, 912 (1997);
Klem v. County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000); Do v. Ocean
Peace, Inc., 279 F.3d 688, 691 (9th Cir. 2002); Dole v. W. Extension Irrigation
Dist., 909 F.2d 349, 351 (9th Cir. 1990)).
None of the cases on which the Ninth Circuit relied held that § 203(o)
constituted an exemption under the FLSA. Indeed, none of these cases even
discussed § 203(o). Rather, they concerned § 13 of the FLSA, 29 U.S.C. § 213
(2000), which is titled, appropriately, “Exemptions.” Had Congress sought to
bestow upon § 203(o) the same status as the exemptions set forth in § 213, it easily
could have amended § 213 instead of § 203, which is titled, not coincidentally,
“Definitions.” Therefore, although this court once, in dicta, referred to § 203(o) as
an exemption, Mitchell v. Se. Carbon Paper Co., 228 F.2d 934, 937 (5th Cir.
1955),13 having today addressed the issue for the first time, we conclude that §
203(o) is not an exemption under the FLSA but is instead a definition that limits
the scope of the FLSA’s key minimum wage and maximum hour provisions.
The statute’s plain meaning aside, our conclusion in this regard also finds
support in the circumstances surrounding passage of the provision that became §
13
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business
on September 30, 1981.
22
203(o). In 1947, approximately nine years after the FLSA was enacted to
eliminate “conditions detrimental to the maintenance of the minimum standard of
living necessary for health, efficiency, and general well-being of workers,” 29
U.S.C. § 202 (2000), Congress passed the Portal-to-Portal Act, 29 U.S.C. §§ 251-
262 (2000). The Portal-to-Portal Act aimed to countermand judicial
interpretations of the FLSA that Congress found to evidence a
disregard of long-established customs, practices, and contracts
between employers and employees, thereby creating wholly
unexpected liabilities, immense in amount and retroactive in
operation, upon employers with the results that, if said Act as so
interpreted or claims arising under such interpretations were
permitted to stand, (1) the payment of such liabilities would bring
about financial ruin of many employers and seriously impair the
capital resources of many others . . .; (2) the credit of many employers
would be seriously impaired; (3) there would be created both an
extended and continuous uncertainty on the part of industry, both
employer and employee, as to the financial condition of productive
establishments and a gross inequality of competitive conditions
between employers and between industries; (4) employees would
receive windfall payments, including liquidated damages, of sums for
activities performed by them without any expectation of reward
beyond that included in their agreed rates of pay; (5) there would
occur the promotion of increasing demands for payment to employees
for engaging in activities no compensation for which had been
contemplated by either the employer or employee at the time they
were engaged in; [and] (6) voluntary collective bargaining would be
interfered with and industrial disputes between employees and
employers and between employees and employees would be created.
29 U.S.C. § 251 (2000).
23
Congress’s efforts to curtail employee-protective interpretations of the
FLSA continued when the FLSA was amended two years later to add, among other
things, what would become § 203(o). As the sponsor of the relevant amendment
explained to fellow representatives, the purpose of the amendment was to “avoid[]
another series of incidents which led to the portal-to-portal legislation.” 95 Cong.
Rec. 11,433 (daily ed. Aug. 10, 1949) (comments of Representative Herter).
Essentially, he explained, the amendment would strengthen the employer-
protective Portal-to-Portal Act by closing a “loophole” therein. Id. Consequently,
construing § 203(o) narrowly against employers as an FLSA “exemption”
contravenes not only basic tenets of statutory construction but also the readily
apparent intent of the legislators who approved the amendment’s language.
In conclusion, we hold that § 203(o) applies to the clothes changing
activities at issue in this case.
2. Custom or Practice Under a Bona Fide CBA
The named CFJV plaintiffs contend that the pay policy at issue does not
qualify as a “custom or practice under a bona fide” CBA, as § 203(o) requires,
because, although the terms of their employment during the relevant period were
governed by a CBA, prior to 2003, the CBAs in effect never addressed the
relevant compensation issue. Moreover, they contend that the parties to the CBA
24
never discussed the matter. According to the named CFJV plaintiffs, “[a] custom
or practice ‘under a collective-bargaining agreement’ of not compensating
employees for changing clothes or washing cannot arise absent some actual
negotiation or agreement between the union and employer on that subject.”
The named CFJV plaintiffs contend that the district court erred by
construing the CBAs and the evidence related to the existence of negotiations in
favor of CFJV. Rather than address their allegations of error directly, we simply
assume that the CBAs never addressed the compensation policy with respect to
clothes changing and that the parties to the relevant CBAs never discussed the
policy. We nevertheless conclude that the named CFJV plaintiffs’ view of the law
is incorrect.
Relying again on a common sense understanding of the statute’s language,
we 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.14 See Turner v. City of Philadelphia, 262 F.3d 222, 225-
27 (3d Cir. 2001) (disposing of an argument identical to that presented by the
14
We do not intend to suggest that a policy implemented after the parties executed a CBA
would satisfy § 203(o)’s custom or practice requirement during the effective period of that particular
CBA. That question is not before us.
25
named CFJV plaintiffs and concluding that a “custom or practice” existed based
on a pre-existing policy notwithstanding an absence of formal negotiations).
Absence of negotiations cannot in this instance equate to ignorance of the policy.
Rather, it demonstrates acquiescence to it. This conclusion does not conflict with
our decision in Hoover v. Wyandotte Chems. Corp., 455 F.2d 387, 389 (5th Cir.
1972), which merely noted a history of bargaining as evidence of a custom or
practice.
For the purpose of our inquiry, we are concerned with the CBAs executed in
1997, 2000, and 2003, which were in effect during the relevant time period. As
previously noted, the named CFJV plaintiffs’ arguments focus on the language of
the CBAs and the absence of negotiations. They do not contend that they lacked
notice of the relevant compensation policy when executing the 1997, 2000, or
2003 CBAs. Nor do they contend that the CBAs in effect during the relevant time
period were somehow not “bona fide.” Having resolved the relevant factual
questions in the named CFJV plaintiffs’ favor, we conclude that CFJV’s policy of
not compensating employees for clothes changing activities satisfies § 203(o)’s
“custom or practice” requirement.
Therefore, the district court correctly granted CFJV’s motion for summary
judgment. Section 203(o) forecloses the named CFJV plaintiffs’ claim that the
26
FLSA required CFJV to compensate them for time spent donning/doffing the
protective clothing at issue. Summary judgment against the named CFJV
plaintiffs was proper also with respect to their alleged claim against Cagle’s, Inc.,
which is derivative of their claim against CFJV. Consequently, it is not necessary
to address the named CFJV plaintiffs’ challenge to the district court’s decision to
sever the claims against the employers.
D. Miscellany
The district court’s opinion granting summary judgment did not explicitly
address all of the claims the named CFJV plaintiffs alleged in their complaint.
Specifically, the district court did not discuss the claims related to uncompensated
break-time clothes changing and uncompensated time on the production line. The
district court’s judgment nevertheless disposed of these claims.
In their initial brief on appeal, the named CFJV plaintiffs cursorily assign as
error the district court’s failure to address these claims as well as other claims they
conceded at oral argument were not alleged in their complaint.15 Their treatment
of this issue, which arises essentially as an aside in the context of a broader
introduction to their brief on appeal, is insufficient for the purpose of appellate
15
We offer no opinion regarding the sufficiency of the complaint, though we note that the
complaint alleged as grounds for the FLSA claim only the compensation policies mentioned in this
opinion.
27
review. See, e.g., United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003) (holding that the appellant had waived an ostensible challenge to certain
evidentiary rulings when he had failed to “devote[] a discrete section of his
argument to claims regarding the evidence of his prior bad acts; instead, each
mention of this evidence is undertaken as background to the claims he does
expressly advance or is buried within those claims”).
V. CONCLUSION
Having determined that jurisdiction is proper, we conclude that the district
court did not abuse its discretion when it decertified the collective action.
Furthermore, CFJV’s motion for summary judgment was properly granted.
Therefore, the district court’s orders decertifying the collective action, granting
summary judgment, and entering judgment in favor of CFJV are affirmed.
AFFIRMED.
28