United States: Eighth Circuit: Donning And Doffing Not A "Principal Activity" That Triggers Compensation

Last Updated: September 16 2013
Article by William F. Allen

On August 30, 2013, in Adair v. ConAgra Foods, Inc., the U.S. Court of Appeals for the Eighth Circuit ruled that time spent by unionized employees walking to and from time clocks after donning and doffing protective clothing was not a "principal activity" for which compensation was required under the Fair Labor Standards Act (FLSA). The Eighth Circuit's ruling adds to an existing circuit split on whether time spent changing clothes, which is otherwise excluded from compensation under section 203(o) of the FLSA, is still a "principal activity" that starts the continuous workday and triggers compensation requirements. Section 203(o) excludes from compensation time spent changing clothes provided that time has been excluded from compensation "by the express terms of or by custom or practice under a bona fide collective-bargaining agreement."

Like the Eighth Circuit, the Seventh Circuit Court of Appeals, in Sandifer v. United States Steel Corp., held that where time spent changing clothes was not compensable under section 203(o) of the FLSA it could not be a principal activity that required compensation for time spent walking between the changing area and work stations. The Supreme Court granted certiorari and will hear oral argument in Sandifer on November 4 to consider the meaning of "clothes" for purposes of exclusion from compensation under the FLSA, but the Court declined to address the principal activity issue raised by the plaintiffs in that case.*

Adair involved a frozen foods facility that required workers to wear certain protective gear to maintain sanitary conditions. Under the terms of a collective bargaining agreement, the company furnished and laundered the gear. The employees donned the clothing before walking to the time clocks and punching in for the day, and at the end of the day punched out before walking to the changing stations to doff their uniforms. The workers had been represented by unions since 1980, when the company acquired the facility, and they had never been paid for time spent changing clothes and walking to the time clocks before and after the start of paid time.

The district court first ruled that the time spent donning and doffing was excluded from compensation by section 203(o) because the protective gear, which generally consisted of smocks, hard hats, ear protection, safety glasses, hair and beard nets, and steel-toed boots, was "clothing" and there was a custom or practice under a bona fide collective bargaining agreement of not compensating for clothes-changing time. However, the district court concluded, even though the clothes-changing time was non-compensable under section 203(o), donning and doffing activities were "principal activities" for purposes of starting the continuous workday because wearing the clothing was "integral and indispensable" to their principal work activity. As a result, the district court held that the subsequent walking time was compensable and denied the employer's motion for summary judgment on that issue.

The employees had agreed at oral argument to waive their right to appeal the district court's finding that their protective gear was "clothes" and instead argued only that that the district court correctly held that even if clothes-changing time is excluded from hours worked under section 203(o), time spent walking between changing stations and time clocks must be compensated. The Eighth Circuit disagreed and reversed the district court's order. Relying on both the text of the FLSA and the Department of Labor's regulations, the appellate court found the FLSA "links the concept of principal activity to employment," and "contemplates that a 'principal activity' is one 'which an employee is employed to perform.'" Thus, the Eighth Circuit found that if an employee is not "employed to perform" a particular activity, no matter how basic to the employee's work, then it is not a "principal activity" that begins or ends the continuous workday. In this case, since the clothes-changing time was excluded from compensation and was not "hours for which an employee is employed," changing clothes was not a principal activity that started or ended the workday.

The Eighth Circuit distinguished the Supreme Court's 2005 ruling in Alvarez v. IBP, Inc. that walking time was a compensable principal activity because it was "integral and indispensable" to donning and doffing protective gear, which the Court also found to be a principal activity. Alvarez was not controlling, the Eighth Circuit stated, because the case did not involve a collective bargaining agreement that had excluded donning and doffing time from compensation and therefore section 203(o) did not apply.

Significantly, the Eighth Circuit also noted the Department of Labor's current position that an activity excluded from compensation by section 203(o) could still constitute a "principal activity" that starts the continuous workday, but found the DOL's position unpersuasive because its views on the subject "have vacillated with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter."

We will continue to monitor developments as other courts weigh in on the issue.

*Note: Littler Mendelson has filed an amicus brief in Sandifer in support of U.S. Steel Corp. on behalf of the Grocery Manufacturers Association.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions