The NAM, the American Meat Institute and the Society for Human Resource Management filed a joint brief in a federal appeals court arguing that courts should respect collective bargaining decisions relating to whether clothes-changing activities are excluded from the compensable workday.
The case involves whether to compensate time spent walking from a locker room to a work station. In some industries, this is a substantial issue. Here, an employer and union agreed that the activities of donning, doffing and washing (clothes-changing activities) were to be excluded from the work day. The company argued these same activities are not “principal activities” that start or end the continuous workday, and thus no additional compensation, including overtime, is required. Various union-represented employees sued to have this travel time compensated, and the trial court held open the possibility.
Our amicus brief argued that courts should defer to the collective bargaining process. Congress has repeatedly emphasized the need for courts and governmental entities to defer to the sanctity of the collective bargaining process to protect the interests of both employees and employers, by giving them the flexibility to resolve the challenges of their specific industry as they deem best. The Portal-to-Portal Act was adopted to rein in litigation that was forcing employers to pay for unbargained-for wages relating to clothes-changing activities. Moreover, until last year, the Department of Labor has long advocated that where a collective bargaining agreement excludes clothes-changing activities from the start of the workday, travel time would be non-compensable.
The trial court wrongly left open the possibility that clothes changing could be a principal activity that starts the work day, but that decision undermines the collective bargaining process and deprives employers and employees of the latitude that Congress intended. Unions negotiate other benefits, such as higher rates of pay for time actually worked, in exchange for not counting travel time as compensable. Paying for travel time rewards employees who are inefficient when using it, at the expense of those who are more efficient. The law was enacted to avoid situations where courts could override collective bargaining terms through litigation, and was designed to keep the Department of Labor from stepping in and changing expectations, potentially resulting in the award of many years of back pay. Instead, in a time of economic crisis, we should be focusing on strengthening relationships between employers and their unions, not making it more expensive for employers to maintain their present workforces.
On 5/8/12, the Seventh Circuit ruled that the workers here changed into "clothes" as defined in the Fair Labor Standards Act (FLSA), and that activity was covered by the collective bargaining agreement and not subject to compensation under the FLSA. In addition, the court found that if the union and employer agree that such activity is not compensable, then it cannot be a "principal activity" under the statute that would start the clock for the workday. According to the court, "Not all requirements imposed on employees constitute employment." The court also refused to defer to the position of the Department of Labor in this case, because the Department's position has shifted from one administration to another, and they did not offer any useful knowledge that might help the court decide the case. The opinion is filled with straightforward, common-sense, practical and economic-based reasons why clothes-changing provisions in collective bargaining agreements should be enforced as written.
Interesting note: The court denied our request to file this amicus brief, so we filed an additional motion urging reconsideration, which was also denied. The Seventh Circuit has recently taken a more restrictive attitude toward briefs from groups that are affected by litigation but that are not parties to the litigation. At the same time, it used the fact that no union filed an amicus brief to support its view that the employee claims in this case would not help unions.