The question of whether to pay employees for putting on protective gear has plagued employers for years. While the federal courts are divided over this issue, at least five Appellate Courts – the Fourth, Sixth, Seventh, Eleventh and now the Tenth Circuits – have held that personal protective equipment is included within the meaning of “clothes” under Section 203(o) of the FLSA, and thus not compensable. Salazar v. Butterball.

Section 203(o) excludes “any time spent changing clothes or washing” from “the hours for which an employee is employed” if such time “was excluded … by the express terms or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” The Plaintiffs in this case were required to “don and doff” aprons, frocks, gloves, plastic sleeves, hard hats, certain footwork, arm guards and other items before and after their shifts and breaks. The collective bargaining agreement was silent as to donning and doffing pay and the past practice was not to pay production employees for this time.