Preview: Taking It All Off: Salazar v. Butterball and the Battle over Fair Compensation Under the FLSA’s “Changing Clothes” Provision

Amanda Walck[1]

The Fair Labor Standards Act (FLSA) guarantees a minimum hourly wage to a vast majority of workers in the United States. The FLSA also requires that employers pay workers for all “hours worked,” including overtime pay for any work done in excess of the standard 40-hour workweek. Since Congress enacted the FLSA in 1938, employers and employees have disagreed about what activities Congress intended to count for purposes of “hours worked.”

The Tenth Circuit dealt with this question in Salazar v. Butterball,[2] a case in which a group of low-wage meatpacking employees argued that FLSA requires their employer to pay them for the time they spend each day before and after their shifts putting on and taking off (“donning and doffing”) the safety equipment they are required to wear in order to perform their extremely dangerous jobs.

There are two main issues in Salazar, both of which have resulted in circuit splits. The first is whether time spent donning and doffing personal protective equipment (PPE) and time spent walking to the production line after donning and doffing PPE constitutes “work” under the FLSA and the Portal-to-Portal Act, and the second is whether PPE are clothes for purposes of an exclusion provided by section 203(o) of the FLSA.

Section 203(o) states that an employer is required to pay its employees for time spent “changing clothes or washing at the beginning or end of each workday” if noncompensation for these activities is an express or implied term of a collective bargaining agreement (CBA) governing the employment relationship. In Salazar, the Tenth Circuit focused its opinion on determining whether PPE are clothes because the employer in the case entered into a CBA with the union representing its employees, thus implicating section 203(o). However, the larger and more complex issue is whether donning and doffing is “work,” a question that has created a separate and more problematic circuit split. While payment for donning and doffing PPE may seem like a straightforward issue of statutory interpretation for the courts, the legal standards for analyzing this issue are actually incredibly confusing and not well defined.

The interpretation of the term “changing clothes” under section 203(o) is an issue of first impression in the Tenth Circuit. Varying interpretations of section 203(o) have now resulted in a circuit split between the Ninth Circuit and the Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits. District courts in Pennsylvania and Illinois have also sided with the view of the Ninth Circuit. In Salazar, the Tenth Circuit rejected the workers’ argument that section 203(o) should not exclude their hours spent donning and doffing PPE from their “hours worked” because PPE are not “clothing” for purposes of section 203(o).

The Tenth Circuit declined to analyze the more complex issue of whether donning and doffing is “work” that can start the compensable workday, even if it is excluded from compensation by section 203(o). This answer to this question is very important, because it could mean that employers would have to pay employees for all activities following the donning and doffing of PPE, including walking from the locker room to their working areas, rather than beginning to pay when employees begin their principle work tasks. The U.S. Supreme Court suggested in IBP v. Alvarez[3] that the FLSA may require employers to pay employees for donning and doffing PPE absent the exclusion in section 203(o) if that activity is integral and indispensable to their jobs.

While the Supreme Court has not addressed whether PPE are “clothing” for purposes of section 203(o), the Department of Labor (DOL), the agency tasked with enforcing the FLSA, has done an analysis of the issue to guide courts and employers. The DOL issued an opinion letter in 2010 stating that PPE should not be considered clothing. The Tenth Circuit’s opinion in Salazar gives almost no consideration to the DOL opinion letter, spending just four sentences discussing the DOL’s interpretation of section 203(o). The court also fails to do a full analysis of the DOL’s interpretation under Skidmore v. Swift & Co., instead using a Tenth Circuit case, Pacheco v. Whiting Farms Inc., to write off the DOL’s position “is not particularly well-reasoned.”

The outcome of Salazar hinges on the Tenth Circuit’s uneasiness with the political nature of the DOL’s opinion letters, leading the court to its decision against applying judicial deference in this case. However, this fear can be detrimental to the effective functioning of the administrative state when it leads to decisions like the one in Salazar. The DOL’s interpretation of section 203(o) is much more consistent with the purpose of the FLSA, which is to ensure that vulnerable workers receive fair wages and reasonable hours, than the interpretation espoused by the Tenth Circuit.

For further explanation and analysis, see Amanda Walck, Taking It All Off: Salazar v. Butterball and the Battle over Fair Compensation Under the FLSA’s “Changing Clothes” Provision, 89 Den. U. L. Rev. __ (forthcoming 2012).


[1] J.D. Candidate, 2013, University of Denver Sturm College of Law

[2] 644 F.3d 1130 (10th Cir. 2011).

[3] IBP Inc. v. Alvarez, 546 U.S. 21, 36 (2005).