PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SANJUANITA SEPULVEDA; ANGELA
SALINAS; JOSE SANCHEZ RIVERA,
individually and on behalf of all
similarly situated; DAVID BAILEY;
SEAN BRADHAM; CLARA BENNETT;
VICTOR BURGOS RIVERA; VENCE
BYRD; HADA CARDENAS; ANGEL
COLMENARES; YACHIRA DAVILA;
HECTOR ESMURRIA; GARVINA GIBBS;
MARGARET GIBBS; ROGER
GONZALES; PATRICIA GUTIERREZ;
SELENA HANCOCK; CESAR
HERNANDEZ; PATTIE HINTON;
WILLIAM JACKSON; THOMAS JACOBS;
ROBIN LOTT; MARICRUZ LUYANDO; No. 08-2256
MARIA MEJIA; LARRY MILLER;
JOANA NIEVES; KECLAINE NORMIL;
SERGE NORMIL; KENNY ORTIZ; ADA
ROSA BATIZ ORTIZ; ANGEL PEREZ;
MARIANO PEREZ; TROY PHILLIPS;
SONIA CORTES PICART; ELOINA
RAMIREZ; MANUEL RAMIREZ; JESSICA
RENTAS; GLORIMAR RIVERA;
MYRIAM RIVERA; ALEJANDRO
ESCALANTE ROBLERO; JOSE
SANCHEZ; ALAN SAVAGE; PEDRO
BARRETO TIADO; MARIA DEL
TORRES CARMEN; ASUNCION TORRE;
2 SEPULVEDA v. ALLEN FAMILY FOODS
CORTEZ TRUITT; JOSE VALENTIN;
MONSERRATE VELEZ; ROLAND
WOODS; NORA L. ALVARADO; LUIS
RIVERA FLECHA; ALEJANDRO TZUM
VICENTE; IVONNE GONZALEZ;
MIGUEL MARTIN LEON; OLGA
MALPICA; FRANCISCA PEREZ; JOSE
RICO; EVELYN TRINIDAD LIERAS;
MARIZOL ZAYA JIMENEZ; JOSE J.
CASTRO; DIANIRA COTTO DIAZ; ENIS
DALISJO VALLES; MOISES FLORES
CARBONELL; EMELDA GOMEZ;
JOHNNY LUPO LEON; SERAFIN
MORALES; FELIX QUINTANA
MALDONADO; ESSAU RIVERA; ALEXIS
ALAMEDA; ESPERANZA ALVAREZ;
LORY ALVINO-LOPEZ; RAMON CRUZ
SERGES; JOHNNY HUERTAS; EDGARDO
JIMENEZ MOLINA; FERNANDO
NATARENO; ALICIA ORTIZ SANCHEZ;
JULIO REYES PEREZ; ALBERT TORRES
MORALES; HECTOR S. VELASQUEZ;
JENNIFER VALENTIN VELEZ; CARMEN
ACEVEDO; CELINES LOPEZ
CARMONA; ROBERTA MARTINEZ;
ELIZABETH MEDELLIN; KEILA
MONTANEZ SANTOS; YESENIA VEGA;
GLADYS ARROYO; KARINA BELASKES
PIRIS; JOSE O. GARCIA; SUZETTE
GARCIA BARBOSA; SANTOS GRAMAJO
MAZARIEGOS; MICHAEL GUERENA
PAGAN; MANUEL J. HERNANDEZ;
GLORIA KIDWELL; VERONICA S.
SEPULVEDA v. ALLEN FAMILY FOODS 3
LUGO; JORGE E. MEDINA GONZALEZ;
PEDRO C. NIEVES; RODOLFO
RAMIREZ LOPEZ; JUDY C. RAMOS;
WILFREDO J. RODRIGUEZ; JOSE LUIZ
SANCHEZ; HARRY SANTIAGO; REBERT
AMISIAL; ROSITA AMISIAL; KENNETH
A. ARMSTRONG; DAVID W. BADGER;
DOROTHY M. BAILEY; FILOMENA
BARTOLON; MARTHA BELL; MARIA
BERDUO; GALEN BYERLY;
DIEUNATHAN CUSTIN; HECTOR
COLON CLASS; JAIRO CORADO;
ALLISON M. DAVIS; LIONEL BUENO;
MIMOSE DELIUS; MARILITZA FERRER-
FIGUEROA; GERALDINE FOREMAN;
CHARLES D. FREEMAN; VIRGINIA
GAONA; BURNELL GIBBS; ELIZABETH
GONZALEZ-COLON; ABILIO
HERNANDEZ; ALEJANDRA HIDALGO;
KATHY D. HOUCHENS; LOLA M.
JACKSON; ARTHUR JOHNSON;
MARVIN KEATON; MARIA A.
LAGUNAS; SHEILA J. LOPEZ; TITO
LOPEZ; WANDA IVETTE LUCIANO
SOLIS; LEROY MANN, SR.; JEAN
MARCELIN; MARCELINA L. MARIOT;
LORRAINE MILES; SAMANTHA
MIRELES; EDUARDO MORALES;
NANCY ORTIZ NIEVES; LAINYA
NOEL; HERIBERTO C. OLIVO;
MARILYN ORTIZ RODRIGUEZ;
SHARON N. ORTIZ; LARRY D.
PARKER; YAHAIRA PAGAN;
VAINQUEUR PAUL; METELLUS
PIERRE-LOUIS; GLADYS E.
4 SEPULVEDA v. ALLEN FAMILY FOODS
RAMOS; LUZ N. RAMOS ORTIZ;
IVONIA RAYMOND; ALEXANDER J.
RICHARDSON; JEAN RICHE; LULA
RIDDICK; WALTER RIVERA ROSA;
CHRISTINE ROUNDTREE; RAFAEL R.
SANTIAGO; PELIZIA SATIRIN; ELAINE
SHEPPARD; SAIDA SOTO; ESTHER RE
SUTTON; CHARLIE THOMAS;
JONATHAN TORRES FIGUEROA;
MATTHEW D. TRAGO; SILVIA
TRUITT; JACKIE D. TULL; MARIO
VELASQUEZ; ROBERTO VELASQUEZ
FIGUEROA; LUCIEN VERNET;
ELIZABETH VITELA; ALEX
WASHINGTON; RUTH ANN WHITE;
GARY D. WILLIAMS; LINDA WOODS;
ELIOT YASE VELEZ; YAHAIRA
NAVARRO GONZALES; LIDIA NUNEZ
RODRIGUEZ; JUAN RODRIGUEZ;
GLADYS M. STEPHENS; AIDA N.
TEXEIRA MELENDEZ; FREDDIE A.
TORRES; JIMMIE TORRES RIVERA;
JONATHAN D. TRAVIES; CEFERINO J.
VASQUEZ; BRIAN WILLIAMS;
AGAPITO ALVARADO; LAURA
ASCENCIO; CLINTON A. BECKETT;
EDWIN BORRERO; JOSE CABALLERO;
CHRISTIAN CAJIGAS;
SEPULVEDA v. ALLEN FAMILY FOODS 5
ANDREA CARTER; GLORIA
CASTANEDA; JACOB CEUS; EDUARDO
COLON RIVERA; YAJAIRA CRUZ;
LUCY CRUZ HIRALDO; THOMAS
DANIELS; LIANETTE DE JESUS;
JANNIE M. EVANS; CHARITABLE
EXANTUS; WANDA FERNANDEZ;
FRANCISCO R. FERRER; LEFILS
FLORES; MARCELLUS M. FOOKS; ELI
S. GARCIA; MANUEL GAUCIN;
ROBERT GEDEON; ANNIE GEORGE;
NORMA I. GIRALD; JAMES A.
GREEN; ANNETTE GUSTIN;
JACQUELINE GUSTIN; HAROLD A.
HARRIS; JEAN A. LARKIN; KEITH P.
LOFLAND; ESTEL MAXION; ARACELI
MEDELLIN; DONNEIL MARK
MURRAY; RAMON OLIVA; MARTA
ORTIZ; FLORA ORTIZ MORALES;
ANGEL LUIS PEREZ; ARCHIBALD
PIERRE; ODETTE PIERRE; CHARLES L.
PINDER; JACQUELINE REGUSME;
GLECERIA V. REYES; ROBERTO
DENNIS RIVERA; RAUL M.
RODRIGUEZ; WANDA RODRIGUEZ;
JAHAIRA RODRIGUEZ CONDE; SAMUEL
ROQUE-RAMOS; SAMUEL ROQUE-
RAMOS; MARCOS A. SANTIAGO;
6 SEPULVEDA v. ALLEN FAMILY FOODS
BRENDA SHIELDS; WILLIAM HENRY
TEAGLE; WILLMARI TORRES REYES;
HAMARA VAZGUEZ; ELIMAS
VELASQUEZ; JULIO M. VELASQUEZ;
WILLIAM L. BAGWELL, JR.;
SHARLENE DIAL; JEFFREY HANCOCK;
LAVERNE HARRIS; HARRY A. ORTIZ;
JOSE RAMIREZ; CRISTINA RODRIGUEZ;
CARL STALLINGS,
Plaintiffs-Appellants,
v.
ALLEN FAMILY FOODS,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:07-cv-00097-MJG)
Argued: October 28, 2009
Decided: December 29, 2009
Before WILKINSON and NIEMEYER, Circuit Judges,
and Anthony J. TRENGA, United States District Judge for
the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge Trenga joined.
SEPULVEDA v. ALLEN FAMILY FOODS 7
COUNSEL
ARGUED: C. Christopher Brown, BROWN, GOLDSTEIN
& LEVY, LLP, Baltimore, Maryland, for Appellants. Arthur
Mortimer Brewer, SHAWE & ROSENTHAL, LLP, Balti-
more, Maryland, for Appellee. ON BRIEF: Jane R. Flanagan,
BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Mary-
land, for Appellants. Eric Hemmendinger, Teresa D. Teare,
SHAWE & ROSENTHAL, LLP, Baltimore, Maryland, for
Appellee.
OPINION
WILKINSON, Circuit Judge:
Under the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (2006), employers and unions may agree through collec-
tive bargaining to exclude "any time spent in changing clothes
. . . at the beginning or end of each workday" from compensa-
ble work time. § 203(o). In this case, we are asked to deter-
mine whether the donning and doffing of protective gear at a
poultry processing plant constitutes "changing clothes" within
the meaning of Section 203(o). We conclude that it does.
Consequently, the employer and union here may—as they
currently have—exclude donning and doffing from compen-
sable work time.
Our holding, of course, does not mean that employees
should not be paid for time spent donning and doffing protec-
tive gear. Instead, it simply recognizes that the purpose of
Section 203(o) is to leave this issue to the collective-
bargaining process. Employers and unions are free to deter-
mine for themselves how much compensable time should be
allocated and for what activities of "changing clothes." This
sort of fact-intensive determination has classically been grist
for the mill of collective bargaining, and Congress ensured
8 SEPULVEDA v. ALLEN FAMILY FOODS
that employers and unions could keep it that way by enacting
Section 203(o).
I.
Allen Family Foods, Inc. ("the company") is engaged in the
business of processing poultry. It operates several plants,
including one in Harbeson, Delaware that employs approxi-
mately 1,200 people. A production line conveys poultry
through this plant for processing and then packaging for even-
tual distribution.
The employees who work on the production line are
required to wear the following items: (1) safety, steel-toe
shoes, (2) a United States Department of Agriculture (USDA)
required smock, (3) a USDA required plastic apron, (4) safety
glasses, (5) ear plugs, (6) a bump cap, (7) a hair net, (8)
USDA required rubber gloves, (9) sleeves, and (10) arm
shields. The company commonly refers to these items as
either "protective gear" or "personal protective equipment."
At the beginning of each workday, production employees
must don these items. They typically do so in the plant’s
locker room or as they walk from the locker room to the pro-
duction area. Once they enter that area, they sanitize their gear
by dipping their gloves into a tank, splashing the liquid solu-
tion onto their aprons, and stepping through a footbath. After-
ward, they take their places along the production line and
begin the task of processing poultry.
Each day, the employees receive a thirty-minute lunch
break, during which no chickens are placed on the production
line. Employees are free to leave the production area when the
last chicken passes their stations but are expected to be back
when the first new chicken arrives. During the lunch break,
they typically take off their gloves and aprons, wash up, and
then walk to the cafeteria. Upon returning to the production
area, they put these items back on and then sanitize them
SEPULVEDA v. ALLEN FAMILY FOODS 9
before resuming work. At the end of each workday, the
employees are not required to go through a particular routine.
But they typically rinse and doff their gear before leaving the
plant.
The company has a long-standing practice of paying these
employees on the basis of "line time." That is, it pays them
for time spent processing chickens on the production line; it
does not pay them for time spent donning and doffing protec-
tive gear, walking to and from the production area, or washing
their gear before or after work. Employees also do not receive
compensation during the lunch break.
Donning and doffing time has been the subject of collective
bargaining at the Harbeson plant. In 2002, United Food and
Commercial Workers Local 27, which represents most of the
production employees at the plant, proposed that its members
be paid for twelve minutes of donning and doffing time per
day. The company and the union did not agree to that pro-
posal, however.
In January 2007, three production employees filed a collec-
tive action against the company under 29 U.S.C. § 216(b) of
the Fair Labor Standards Act ("FLSA"). They were joined by
approximately 250 current and former production workers
who opted in to the action (collectively "the employees"). The
employees claimed, among other things, that the company had
violated the FLSA by not compensating them for time spent
donning and doffing their protective gear.
After discovery, the company moved for summary judg-
ment. Its primary argument was that its pay practices were
permissible under 29 U.S.C. § 203(o) of the FLSA, which
allows employers and unions to exclude "any time spent in
changing clothes . . . at the beginning or end of each work-
day" from compensable work time. In response, the employ-
ees sought, by cross motion for partial summary judgment, a
holding that Section 203(o) did not bar their suit. The main
10 SEPULVEDA v. ALLEN FAMILY FOODS
issue of contention was whether donning and doffing protec-
tive gear constituted "changing clothes" within the meaning of
the section.
Adopting the Eleventh Circuit’s analysis in Anderson v.
Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007), cert. denied, 128
S. Ct. 2902 (2008), the district court held that the donning and
doffing of the protective gear was "changing clothes."
Accordingly, it entered summary judgment for the company.
The employees now appeal.
II.
We begin with a brief overview of the relevant statutory
provisions. The FLSA guarantees covered employees a mini-
mum hourly wage for their work and entitles them to one and
one-half times their regular wage for overtime. 29 U.S.C.
§§ 206, 207. A recurrent question under the Act has been
when the compensable workday begins and ends. The ques-
tion often arises where, as here, employees perform some
tasks before productive work begins.
The FLSA does not define "work" or "workweek." But two
statutory provisions do bear directly on the question of when
the compensable workday begins. The first is Section 254 of
the Portal-to-Portal Act, 29 U.S.C. §§ 251-62, which amends
the FLSA. It provides, among other things, that employers are
not required to pay their employees for "activities which are
preliminary to or postliminary to" the principal activities for
which they are employed, unless the employer agrees to do
so. § 254(a)(2),(b). Under this provision, activities like chang-
ing clothes and washing which are performed before or after
the regular work shift are "ordinarily" considered preliminary
or postliminary activities and are therefore "excluded from
compensable work time" by default. Steiner v. Mitchell, 350
U.S. 247, 249 (1956). Changing clothes and washing are not
so excluded, however, if they are "an integral and indispensi-
ble part" of an employee’s principal activities. Id. at 256.
SEPULVEDA v. ALLEN FAMILY FOODS 11
The second is Section 203(o) of the FLSA. This section
provides:
Hours Worked.—In determining for the purposes of
[the minimum wage and overtime provisions] of this
title 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 work-
ing 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) (emphasis added).
While these two provisions both bear on whether changing
clothes and washing count as part of the compensable work-
day, they operate in different yet interrelated ways. As the
Supreme Court has noted, Section 203(o)’s "clear implication
is that clothes changing and washing, which are otherwise a
part of the principal activity [under the Portal-to-Portal Act],
may be expressly excluded from coverage by agreement."
Steiner, 546 U.S. at 255. That is, even if changing clothes and
washing are "integral and indispensible" and therefore not
excluded from work time by default under the Portal-to-Portal
Act, an employer and union may nonetheless "opt out" by
excluding such time under their collective-bargaining agree-
ment. See Livadas v. Bradshaw, 512 U.S. 107, 131 (1994)
(describing Section 203(o) as an "opt out" provision).
In this case, either provision could potentially exclude the
time that the employees spend donning and doffing. It is an
open question in this circuit whether donning and doffing pro-
tective gear is a preliminary or postliminary activity or "inte-
gral and indispensible" to the principal activity of poultry
processing. If it is the former, then time spent on the activity
is excluded by default under the Portal-to-Portal Act. The dis-
12 SEPULVEDA v. ALLEN FAMILY FOODS
trict court did not reach that question, however, and we need
not do so here. For whatever the applicability of the Portal-to-
Portal Act exclusion, the time spent on these activities may be
excluded from the compensable workday if Section 203(o)
applies.
Section 203(o) applies to donning and doffing of protective
gear at the beginning and end of each day if two conditions
are met. First, these activities must constitute "changing
clothes" within the meaning of the statute. Second, time spent
on these activities must be excluded from the workday by the
express terms of or the customs and practices under a bona
fide collective bargaining agreement.
The employees concede the existence of such a custom or
practice and for good reason. See Br. of Appellants at 8 n.2
("Plaintiffs do not contest the ‘custom or practice’ part of the
exclusion."). The company’s practice of paying the employees
on a "line time" basis is long-standing. While one of the
unions at the plant proposed adding donning and doffing time,
this proposal was never agreed upon, and the custom or prac-
tice remains in place.
The question presented in this case, therefore, is whether
donning and doffing protective gear counts as "changing
clothes." If so, then time spent on these activities is not com-
pensable under the FLSA.
III.
The employees argue that Section 203(o) does not apply for
two main reasons: the items at issue are not "clothes," and the
act of donning and doffing them is not "changing." We dis-
agree on both points. In our view, Section 203(o) was
intended to leave the compensability of this very sort of activ-
ity to the collective-bargaining process.
SEPULVEDA v. ALLEN FAMILY FOODS 13
A.
"We begin, as always, with the text of the statute." Perma-
nent Mission of India to the United Nations v. City of New
York, 551 U.S. 193, 197 (2007). The statute does not define
the phrase "changing clothes." Accordingly, we apply the
"fundamental canon of statutory construction" that "words
will be interpreted as taking their ordinary, contemporary,
common meaning." Perrin v. United States, 444 U.S. 37, 42
(1979).1
We first turn to the plain meaning of the word "clothes." A
leading dictionary defines "clothes" as "clothing," which in
turn 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 Dictio-
nary 428 (unabridged) (1986) [hereinafter Webster’s]. Like
the Fifth and Eleventh Circuits, we conclude that this defini-
tion is "consistent with the common understanding of the
word." Anderson, 488 F.3d at 955; see also Bejil v. Ethicon,
Inc., 269 F.3d 477, 480 n.3 (5th Cir. 2001) (adopting this defi-
nition). This definition certainly encompasses the items which
are at issue here. All the required items serve as "covering."
The shoes, smocks, aprons, gloves, and sleeves easily qualify
as "garments," while the bump caps, ear plugs, hairnets, arm
shields, and glasses fall comfortably within the category of
"accessories."
1
The employees urge us to construe Section 203(o) narrowly in order
to effectuate the remedial purposes of the FLSA. As they acknowledge,
however, not all courts have applied this standard of interpretation to Sec-
tion 203(o) because the section simply defines "Hours Worked" rather
than exempting entire categories of employees from FLSA’s protection.
Compare Anderson, 488 F.3d at 957 (declining to apply the standard),
with Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003) (applying the
standard). We need not enter this debate. Even if this standard of interpre-
tation applies, we still must "giv[e] due regard to the plain meaning of
statutory language and the intent of Congress." A.H. Phillips, Inc. v. Wall-
ing, 324 U.S. 490, 493 (1945).
14 SEPULVEDA v. ALLEN FAMILY FOODS
The employees argue that the "plain text" of the statute
"does not permit" this interpretation. Br. of Appellants at 15.
In their view, "clothes" encompasses only "regular undergar-
ments and outerwear" of the sort "that one would wear on the
street." Id. at 15, 17. While this definition might embrace
standard company uniforms, their argument goes, it excludes
items worn for protection from hazards in the workplace. We
find this cramped interpretation of the term "clothes" unper-
suasive for two main reasons.
First of all, we fail to see why the term "clothes" would
refer to only "ordinary" or "street clothes." Id. at 15, 16. The
statute does not use such qualifying adjectives; nor shall we.
The statute explicitly refers to "changing clothes . . . at the
beginning or end of each workday." § 203(o) (emphasis
added). It is obvious from both the language and the subject
matter of the statute that Congress was talking about work
clothes and not, say, just street clothes or pajamas. The statute
encompasses precisely the sort of clothes that people wear to,
at, or from work, which are often quite different from the sort
that people wear on their own time.
Second, "we see no need to distinguish uniforms from pro-
tective clothes." Anderson, 488 F.3d at 955. Clothes com-
monly protect the people who wear them, either from weather
conditions or physical hazards, and the fact they are worn for
that very purpose does not mean that they cease to be clothes.
"A cloth jumpsuit, for instance, is probably clothing even if
worn by a car mechanic as protection from oil and grease."
Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063, 1067 (D. Minn.
2007). Likewise, a steel-toe boot is clothing even if worn as
protection from hazards on the factory floor. We fail to see,
therefore, how protective clothing is somehow not clothing.
This fact is illustrated by federal regulations which the
employees themselves cite in support of their position. Br. of
Appellants at 20 n.5. The Occupational Safety and Health
Administration, for example, defines "personal protective
equipment" as "specialized clothing or equipment worn by an
SEPULVEDA v. ALLEN FAMILY FOODS 15
employee for protection against a hazard." 29 C.F.R.
§ 1910.1030(b) (emphasis added).
Section 203(o) makes no distinction between protective and
non-protective clothes. That provision "simply uses the term
‘clothes,’ which would seem to indicate that it includes all
clothing, including that which also constitutes personal pro-
tective equipment." Figas v. Horsehead Corp., No. 06-1344,
2008 WL 4170043, at *10 (W.D. Pa. Sept. 3, 2008) (emphasis
omitted). Because many work clothes are protective to some
extent, the distinction urged upon us by the employees would
be difficult, if not impossible, for courts to administer in a
consistent and coherent manner. As counsel for the employees
acknowledged at oral argument, the steel-toe shoes at issue
here could be reasonably classified as either "normal" clothes
or "protective gear." So too could the aprons, smocks, or rub-
ber gloves. These are but a few examples of the many difficult
determinations that courts would be required to make were we
to adopt the employees’ piece-by-piece approach to clothing.
This case, by contrast, involves a straightforward applica-
tion of the statutory text. It concerns what other courts have
described as "standard safety equipment." See Reich v. IBP,
Inc., 38 F.3d 1123, 1125-26 (10th Cir. 1994).2 Like the Elev-
2
The employees rely heavily on the Ninth Circuit’s decision in Alvarez,
which holds that the protective items worn in the beef and pork industries
are not "clothes" within the meaning of Section 203(o). 339 F.3d at 904-
05, aff’d on other grounds, 546 U.S. 21 (2005). We need not adopt either
the Ninth Circuit’s holding or rationale to note that appellants’ reliance is
misplaced. In Alvarez, the Ninth Circuit distinguished between "non-
unique gear" such as hardhats and safety goggles and "unique gear" such
as metal-mesh leggings and Kevlar gloves. Id. at 903. With respect to the
non-unique items, it held that time spent donning and doffing was "non-
compensable as de minimis." Id. at 904. Thus, if the items in this case
qualify as non-unique (which they certainly do), then the Ninth Circuit
reaches the conclusion that the employees are not entitled to compensa-
tion, albeit for a different reason.
16 SEPULVEDA v. ALLEN FAMILY FOODS
enth Circuit, we conclude that these items "fit squarely"
within the definition of "clothes." Anderson, 488 F.3d at 956.3
We now turn to the plain meaning of the term "changing."
To "change" means "to make different," that is "to modify in
some particular way but short of conversion to something
else." Webster’s 373; see Anderson, 488 F.3d at 956 (adopt-
ing this definition). The employees contend, however, that the
term "changing" requires the exchange or substitution of one
item for another. In their view, simply layering protective
gear on top of one’s clothes does not count as "changing."
We reject this narrow definition. "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." Id. at 956. And it would make little sense for the
statute to impose such a requirement. If it did, compensation
for putting on a company-issued shirt might turn on some-
thing as trivial as whether the employee did or did not take off
the t-shirt he wore into work that day. Thus, "we conclude
that one need not exchange clothes to change clothes for pur-
poses of applying § 203(o)." Id. Rather, one can also change
3
Our interpretation of the term "clothes" is consistent with that of the
Department of Labor, the agency responsible for administering the FLSA.
See Fair Labor Standards Act, U.S. Dep’t of Labor, Wage & Hour Div.
Advisory Op. Ltr. No. FLSA2002-2 (June 6, 2002) ("[W]e interpret
‘clothes’ under section 3(o) to include items worn on the body for cover-
ing, protection, or sanitation . . . ."); see also Fair Labor Standards Act,
U.S. Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr. No.
FLSA2007-10 (May 14, 2007) (reiterating this view). We recognize that
the Department has not always held this view. See Fair Labor Standards
Act, U.S. Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr. (Dec. 3,
1997) ("[S]ection 3(o) does not encompass protective safety equipment
. . . ."); see also Fair Labor Standards Act, U.S. Dep’t of Labor, Wage &
Hour Div. Advisory Op. Ltr. (Jan. 15, 2001) (reiterating this view). The
Eleventh Circuit found the more recent letter "more persuasive than the
earlier ones." Anderson, 488 F.3d at 957. Whatever may be the case, our
own view rests upon the language of the statute, not upon the gyrating
agency letters on the subject.
SEPULVEDA v. ALLEN FAMILY FOODS 17
something by modifying it. Accordingly, the employees’ act
of donning and doffing their equipment fits comfortably
within the meaning of "changing."4
B.
Our reading of the text finds additional support in the pur-
pose of Section 203(o), made evident by the circumstances
leading to its enactment. Both Section 203(o) and the Portal-
to-Portal Act, enacted two years earlier, were intended to give
employers and employees greater latitude to determine when
the work day begins and ends. Were we to adopt the appel-
lants’ reading of Section 203(o)’s text, we would undermine
rather than respect that purpose.
As noted above, the FLSA, which was enacted in 1938,
does not define the terms "work" or "workweek." The
Supreme Court defined these terms "broadly" in its early
FLSA cases. IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005). It
defined them so broadly, in fact, that Congress found it neces-
sary to amend the statute to restore some sanctity to private
employment contracts.
4
The employees also contend that the term "washing" in Section 203(o)
does not apply to their act of washing gear at the beginning and end of
each shift. Like the word "clothes," the word "washing" is not qualified.
We see no reason, therefore, to treat "washing" differently than "clothes."
The basic problem with the employees’ complaint is that it seeks to qual-
ify the words "washing" and "clothes," but the statute simply does not read
that way.
Lastly, the employees seek compensation for the time they spend during
their lunch breaks donning and doffing a few items, washing, and walking
to and from the cafeteria. This time is non-compensable, however, because
it is part of a bona fide meal period, see 29 C.F.R. § 785.19 ("Bona fide
meal periods are not worktime."), and, in the alternative, de minimis. See
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) ("When
the matter in issue concerns only a few seconds or minutes of work
beyond the scheduled working hours, such trifles may be disregarded.").
18 SEPULVEDA v. ALLEN FAMILY FOODS
Most relevant here, the Court held in 1946 that "the statu-
tory 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." Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 690-91 (1946). As a result, time
spent performing "preliminary activities" after arriving at the
workplace such as "putting on aprons and overalls, removing
shirts, taping or greasing arms, [and] putting on finger cots"
counted as work. Id. at 692-93.
Many employers, however, did not have a custom or prac-
tice of paying their employees for such preliminary activities.
Consequently, they faced a flood of FLSA suits following the
Mt. Clemens decision. "By some reports, claims totaling a bil-
lion dollars on behalf of industrial employees were filed" by
the end of 1946. Leah Avey, Note, Walk to the Line, Compen-
sable Time: Cash in the Pockets of Employees, 32 Okla. City
U. L. Rev. 135, 142 (2007).
In 1947, Congress reacted to this situation by passing the
Portal-to-Portal Act. There Congress found that the FLSA had
"been interpreted judicially in disregard of long-established
customs, practices, and contracts between employers and
employees, thereby creating wholly unexpected liabilities,
immense in amount and retroactive in operation." 29 U.S.C.
§ 251(a). With respect to existing claims, Congress provided
that "[n]o employer shall be subject to any liability or punish-
ment" for failing to pay their employees for time that had not
been compensable under then-existing contracts, customs, or
practices. § 252(a). With respect to future claims, Congress
provided that employers would not be required to pay their
employees for, among other things, "activities which are pre-
liminary to or postliminary to [the employee’s] principal
activity or activities." § 254(a)(2). Whether those activities
were compensable was restored to the realm of contract, cus-
tom, and practice. § 254(b).
Two years later, Congress continued its effort to restore
sanctity to private agreements by adding Section 203(o) to the
SEPULVEDA v. ALLEN FAMILY FOODS 19
FLSA. The sponsor of the amendment stated that its purpose
was to "avoid[] another series of incidents which led to the
portal-to-portal legislation." 95 Cong. Rec. 11210 (1949)
(comments of Representative Herter). He observed that many
employers and employees had "carefully threshed out"
through the collective-bargaining process whether "the time
taken to change clothes . . . is considered a part of the working
day." Id. The language of Section 203(o) is thoroughly reflec-
tive of that purpose. Like the Portal-to-Portal Act, Section
203(o) reflects Congress’s intention to give private parties
greater discretion to define the outer limits of the workday.
The reasons behind this legislative judgment are not diffi-
cult to discern. First of all, Congress recognized that employ-
ers and unions are in a better position than either courts or
agencies to "thresh[] out," Id., how many minutes of compen-
sable time to allocate to which tasks of "changing clothes."
While employers and employee representatives can tailor
solutions at the bargaining table to fit their particular circum-
stances and while negotiating parties can modify those solu-
tions to address changing conditions, courts and agencies
would find themselves in a morass of difficult, fact-specific
determinations if they were ultimately charged with deciding
whether and how much of this time was compensable. In
short, the statute evidences a preference for private resolution
of such workplace concerns, rather than management of small
increments of time and particular items of clothing through
the judiciary.
Second, collective bargaining allows employers and unions
to reach agreements that leave both sides more satisfied than
a government-imposed solution would. A union, for instance,
may be willing to trade off compensation for changing clothes
in return for such other objectives as higher hourly wages,
enhanced benefits, or improved working conditions—as one
of the unions in this very case apparently did. And an
employer may be willing to offer a higher hourly wage or
other benefits in lieu of compensating employees for changing
20 SEPULVEDA v. ALLEN FAMILY FOODS
clothes, given that this activity may be difficult to monitor.
Taking this issue out of the give-and-take of the collective-
bargaining process and putting it in courts or agencies could
preclude such flexible and mutually preferable agreements.
Finally, the issue here is not whether employees should
wear protective gear or whether the government may mandate
that they do so. It is simply "whether [employees] should be
compensated for the time they spend doing so." Figas, 2008
WL 4170043, at *10 n.12. And Congress has concluded that
employees would be better off if this issue were subject to
collective bargaining. For, "[i]t would disserve the workers
the Fair Labor Standards Act is meant to protect if employers
who wished to introduce . . . more protective gear in the
workplace knew that in doing so they would lose their ability
to bargain with their union over the compensability of donn-
ing and doffing protective gear." Fair Labor Standards Act,
U.S. Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr.
No. FLSA2002-2 (June 6, 2002). This sort of disincentive to
workplace safety is not one that courts should casually intro-
duce, especially in the face of a clear and contrary congressio-
nal mandate by Section 203(o).
IV.
For the reasons above, we find that the activity of donning
and doffing protective gear constitutes "changing clothes"
within the meaning of Section 203(o) and is therefore not
compensable under the prevailing customs or practices at the
Harbeson plant. We stress that our decision does not leave
these employees without protection. It simply recognizes that
Congress has made a policy choice that, when it comes to
time spent changing clothes and washing, the respective inter-
ests involved are best protected through the collective-
bargaining process and the agreements negotiated pursuant
thereto.
Accordingly, the judgment of the district court is
SEPULVEDA v. ALLEN FAMILY FOODS 21
AFFIRMED.