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Here we go again: Another federal court has ruled on whether employees should be paid for the time it takes to put on and take off their required safety gear. And the ruling is opposite one handed down by another court just last month.

Workers at Butterball’s Longmont, CO, plant filed a lawsuit claiming the company’s failure to pay them for the time spent donning and doffing safety gear violates federal law.

The workers are required to put on and take off protective gear including plastic sleeves, gloves, cotton glove liners, boots or overshoes, hard hats, earplugs, and safety glasses. Some, but not all, workers were also required to wear mesh gloves, knife holders and arm guards.

Butterball never paid these production workers for donning and doffing time.

The workers’ collective bargaining agreement (CBA) doesn’t address the issue.

Federal code states that any time spent changing clothes is exempt from compensation.

So one question the Tenth Circuit Court addresses in this case is whether safety gear is the same as clothes.

Although other courts have addressed that question, the Tenth Circuit hearing this case had not.

The Fifth, Sixth, Seventh and Eleventh Circuits have ruled that donning and doffing protective gear is the same as changing clothes.

The Ninth Circuit reached a different conclusion: that “unique” safety gear, such as Kevlar gloves, are not clothes.

The Tenth Circuit noted in its opinion that the U.S. Wage and Hour Division has repeatedly shifted its position on pay for putting on and taking off safety gear (the shifts usually coincide with changes in presidential administrations).

The most recent Wage and Hour position: Pay workers for changing in and out of safety gear.

However, the court decided it doesn’t have to listen to the most recent guidance. “We decline to defer to the Wage and Hour Division’s most recent interpretation,” the judges wrote. “Where, as here, an agency repeatedly alters its interpretation of a statute, the persuasive power of those interpretations is diminished.”

So, for the most part, the Tenth Circuit has decided that safety gear is the same as clothes, and companies don’t have to pay for donning and doffing time.

However, there’s one exception: When safety gear is “heavy and cumbersome” and “requires physical exertion, time, and a modicum of concentration to put them on securely and properly,” the Tenth Circuit says employees should be paid for the donning and doffing time.

On another matter, the Tenth Circuit has gone in a completely opposite direction from a Fourth Circuit opinion issued just last month.

In a case involving a Mountaire Farms chicken processing plant in Delaware, the Fourth Circuit said since the question of pay for donning and doffing time wasn’t addressed in a CBA, workers should be paid for it.

The Tenth Circuit concluded that “a mutually-accepted custom of practice may become an implied CBA term.” Since the Butterball CBA doesn’t address donning and doffing time, and because the workers hadn’t ever been paid for the time, a practice of non-compensation existed and the workers still don’t have to be paid for the time.

With these diverging opinions, what are companies supposed to do about this issue? For now it appears there’s no one national answer. Companies have to be aware of the various Circuit court rulings and which one covers their geographical area.

What do you think about the court’s opinion in this case? Did the court legislate from the bench by discounting the Wage and Hour Division’s guidance? Does paying workers for donning and doffing time make them more likely to abide by safety gear rules? Let us know what you think in the Comments Box below.

(Salazar v. Butterball, U.S. Circuit Crt. 10, No. 10-1154, 7/5/11)

Tags: Butterball, donning and doffing, protective gear, safety gear, Tenth Circuit