Wednesday, September 1, 2010

6th Circuit Declines to Follow DOL's Opinion Letter Regarding 203(o), Delivers Death Nail to Employees

A recent opinion out of the Court of Appeals for the Sixth Circuit concerns donning and doffing and compensable time under the Fair Labor Standards Act and starts like out most donning and doffing cases (i.e., employees required to wear certain protective garments, argue they should be compensated for such time spent), but the opinion itself takes a unique twist regarding the Department of Labor's opinion letters and who bears the burden of proof in showing that donning and doffing is excluded under § 203(o).

The 6th Circuit ultimately concludes that § 203 is not an exemption and therefore not an affirmative defense, which places the burden on the plaintiff to establish entitlement to wages under the FLSA,including to prove that there is no custom or practice under a bona fide CBA related to “changing clothes.”

The 6th Circuit decided, in part because the DOL's opinion letters regarding "clothes" under § 203 keeps changing and evolving and because of the Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), that the DOL's most recent opinion letter regarding "clothes" under § 203 will not be followed. Thus, the Court held that "clothes" refers to any “covering for the human body or garments in general,” particularly those worn for work. And, enough to make any plaintiff's lawyer fall out of their chair, the Court ruled that there is " reason to distinguish between protective and non-protective clothes." Therefore, ear plugs are clothes!

In making their ruling, the 6th Circuit notes that their decision is in concurrence with some circuits and at odds with other, which makes this issue plenty ripe for grant of cert by the Supreme Court!

The case is Franklin v. Kellogg Company, No. 09-5880.

No comments:

Post a Comment