Anderson et al v. Perdue Farms Incorporated

Filing 161

MEMORANDUM OPINION AND ORDER that the portion of Defendant's 78 Motion that the Court construed as a MOTION to Strike is DENIED; that Defendant's 78 MOTION for Summary Judgment is GRANTED in part and DENIED in part; that said Motion is granted with respect to time spent clearing security and time spent walking from where Plaintiffs clear security to the employee lounge or locker rooms; that the Motion is denied in all other respects; that Plaintiffs' 91 Cross MOTION for Partial Summary Judgment is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 3/10/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION D A R R Y L ANDERSON, et al., P la in tif f s , v. P E R D U E FARMS, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 1:06-cv-01000-MEF-WC (W O -- R e c o m m e n d e d for Publication)

MEMORANDUM OPINION AND ORDER I . INTRODUCTION P la in tif f s in this collective action seek to vindicate rights protected by the Fair Labor S ta n d a rd s Act, 29 U.S.C. §§ 201 et seq. ("FLSA"). They allege that defendant Perdue F a rm s, Inc. ("Perdue") failed to compensate them and others similarly situated for all c o m p e n sa b le time including (1) time spent clearing security and walking from security to t i m e clock areas, (2) time spent donning and doffing required equipment "integral and in d is p e n sa b le " to principal work activities, (3) time spent walking to and from break areas to designated time clock areas, (4) time spent waiting to clock in, and (5) for two unpaid meal b re a k s. Perdue claims that it designed its timekeeping system pursuant to a groundbreaking c o n se n t judgment with the Department of Labor and that its pay practices compensate P la in tif f s for all compensable time. Perdue filed a Motion for Summary Judgment (Doc. # 78), and Plaintiffs filed a 1

C ro s s -M o tio n for Partial Summary Judgment (Doc. # 91). Both Motions are now under s u b m is s io n and ripe for disposition. For the reasons set forth in this Memorandum Opinion a n d Order, Perdue's Motion is due to be GRANTED in part and DENIED in part. Plaintiffs' M o tio n is due to be DENIED. II. JURISDICTION AND VENUE This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiffs claims are p u rs u a n t to 29 U.S.C. §§ 201 et seq. The parties do not contest venue and personal ju ris d ic tio n , and the Court finds a sufficient basis for each. III. STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the

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p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) " re q u ire s the nonmoving party to go beyond the pleadings and by her own affidavits, or by th e `depositions, answers to interrogatories, and admissions on file,' designate `specific facts s h o w in g that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). On the other hand, a court ruling on a motion for summary judgment must believe th e evidence of the nonmovant and must draw all justifiable inferences from the evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255. After the nonmoving party has re sp o n d e d to the motion for summary judgment, the Court must grant summary judgment if th e r e is no genuine issue of material fact and the moving party is entitled to judgment as a m atter of law. Fed. R. Civ. P. 56(c). I V . FACTS AND PROCEDURAL HISTORY T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the Motions. The Court has also considered the

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s tip u la tio n s by and between the parties contained in this Court's Order on Pretrial Hearing. (D o c. # 160.) Because there are cross-motions for summary judgment in this case, the Court w ill consider the facts and reasonable inferences to be drawn from the facts in the light most f a v o ra b le to the non-moving party as the Court considers each of the Motions. With this c a v ea t, the submissions of the parties, viewed in the light most favorable to the nonmoving p a r ty, establish the following relevant facts: A . The Plant P e rd u e operates a chicken processing plant in Dothan, Alabama. The plant operates f iv e days per week, three shifts per day. Only the night (third) shift and the day (first) shift e m p lo ye e s process poultry. First Processing is the area of the plant where employees in tro d u c e live chickens into the plant and hang them on hooks or shackles for killing, clea n ing , eviscerating, and chilling. Second Processing is the area of the plant where e m p lo ye e s cut up, marinate, debone, weigh, size, and pack chickens. A conveyor system m o v e s the chickens through First Processing and into and through Second Processing. P la in tif f s are current and former First and Second Processing employees at the plant. B. Kronos Timekeeping System O n e of several Kronos time system clocks captures each employee's time. The time s ys te m captures all principal work activities as defined by a consent judgment between the D e p a rtm e n t of Labor and Perdue, which is discussed more fully below. Perdue issues each e m p lo ye e an electronic card that the employee swipes through the Kronos time system clock,

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a n d the Kronos system records each employee's time and stores the data electronically at P e rd u e 's headquarters. There are two clocks in First Processing and six clocks in Second P ro c e s s in g . Perdue pays its hourly employees for all time captured by the Kronos system, w h ic h is not all the time employees spend at the plant. Hourly employees at the plant are scheduled to work 37.5 hours per week, but they o f t e n work forty or more hours in a week when product demand so requires. Perdue pays e m p lo ye e s time and one half of their regular rate of pay for hours recorded by the Kronos s ys te m in excess of forty hours per week. C. A Typical Day at the Plant P r io r to the start of their shift, Processing employees park their cars in the parking lot o n the facility complex. Employees walk through a gate in a chain link fence and display th e ir Perdue identification cards to a third-party security guard on their way to the facility e n tra n c e . Employees do not normally stop at the security checkpoint, but they are subject to h a v in g their belongings searched. Also, employees who do not have their identification cards m u s t wait for identification by the plant office. Employees then proceed to their designated e n tra n c e to the plant building where there are locker rooms, rest rooms, and break rooms for th e ir use. Employees then await the beginning of their shift. Perdue requires employees to don and doff numerous accoutrements, which the Court d iv id e s into two categories for convenience: Personal Protective Equipment ("PPE") and

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D e p a r tm e n t a l Equipment.1 PPE consists of bump caps, hair nets, beard nets, safety glasses, e a r plugs, and boots. Departmental Equipment may include gloves, hand or arm guards, a p ro n s or smocks, and cutting equipment, depending on the employee's department.2 B e f o re the start of their shift, employees walk from the break area and through a pair o f double doors that lead to the production area. Federal regulations require that employees d o n PPE before entering the production area. These items may be obtained from the supply ro o m or from supervisors prior to clocking in if employees do not have the items with them. E m p lo ye e s sanitize their boots upon entering the production area and proceed some distance to their designated time clock.3 Sometimes employees must wait in line to clock in. They d o n and sanitize Departmental Equipment after clocking in. Employees then proceed to their work station and begin to work. After working for a p p ro x im ate ly two hours, their supervisor informs them that it is time for their first of two th irty-m in u te unpaid meal breaks. Employees sanitize and doff Departmental Equipment w h ile on the clock. Employees proceed to their department Kronos time clock and swipe out to begin their break. They then walk to the double doors that lead out of the production area

Plaintiffs consider this an "arbitrary distinction." (Doc. # 85 ¶ 13.) The Court nevertheless adopts these labels for ease of use, subject to the understanding that the distinction carries with it no independent legal significance. The time employees spend donning and doffing Departmental Equipment is not a subject of this lawsuit. Sanitization of boots involves walking through a sanitizing foam, and does not add time to the employees walk from their break room to the Kronos clock. 6
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a n d sanitize their boots. Employees must continue to wear PPE until the exit the production a re a , when they may doff PPE. As the end of the first thirty-minute meal break approaches, employees walk through th e double doors and to their assigned Kronos clock near their workstation. Employees must d o n PPE prior to entering the production area to the extent they doffed PPE during their meal b re a k . Once the meal period has elapsed, employees swipe in at their assigned Kronos clock, a n d the Kronos clocks will not record a swipe until thirty minutes have elapsed. Employees s w ip e in and then don and sanitize Departmental Equipment. Sometimes employees must w a it in line to clock in after meal breaks. This whole process happens again, later in the shift, incident to the second unpaid m e a l break. The meal breaks for the morning shift occur at approximately 10:20 a.m. and 1 :2 0 p.m. The night shift meal breaks occur at approximately 1:00 a.m. and 4:00 a.m. When the supervisor notifies employees that their shift has ended, employees doff th e ir Departmental Equipment then clock out. They must then proceed out of the production a re a , and they doff PPE once they have left that area. Processing employees may then place th e ir PPE in their lockers or take the items home with them. Employees then exit the facility a n d return to the employee parking lot. D. The Consent Judgment P r io r to 2002, virtually all poultry companies, including Perdue, used a timekeeping syste m known as "line time," "master time," or "gang time." This system did not compensate

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e m p lo ye e s for time spent donning and doffing PPE and Departmental Equipment. In 1997 an d 2000, the U.S. Department of Labor ("DOL") conducted an investigation of the nation's p o u ltry processing plants in order to ensure compliance with the FLSA and to improve e m p lo ye e working conditions. The investigation uncovered what the DOL considered wage a n d hour violations. O n May 9, 2002, after negotiations following these investigations and a lawsuit filed b y the Secretary of Labor against Perdue in the Middle District of Tennessee, Perdue and the D O L entered into a consent judgment regarding Perdue's timekeeping and pay practices. T h e consent judgment created a departure from line time, and required instead that Perdue p a y its hourly poultry processing employees for all hours worked from their first principal a c tiv ity of the work day until the end of the last principal activity of the work day, except for tim e taken for bona fide unpaid meal breaks or other bona fide off-duty time. The consent ju d g m e n t further stated that a principal activity is any activity that is integral or indispensable to the employee's work and includes such activities as donning, doffing, and sanitizing of any c lo t h in g or equipment, except items the employee is free to put on at home, such as hair nets, b u m p caps, ear plugs, glasses, and boots. Time employees spend sanitizing themselves and th e i r equipment and time spent walking or waiting after they have performed the first p rin c ip a l activity are included in the definition of principal activity. Time spent donning and d o f f in g items the employee is not free to take home before and after unpaid meal breaks is a ls o to be compensated under the consent judgment.

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P e rd u e and the DOL designed the Kronos system to capture all compensable time f ro m the first principal activity to the last principal activity as defined in the consent ju d g m e n t. The DOL subsequently confirmed that Perdue's plants, including the Dothan p la n t, were in compliance with the consent judgment, and that all poultry processing e m p lo ye e s were trained to comply with the consent judgment. Additionally, since 2005, P erd u e has given all new poultry processing employees an orientation and training brochure th a t describes in detail Perdue's donning and doffing procedures. E . Procedural History Plaintiffs filed a complaint against Perdue on November 3, 2006, (Doc. # 1) c la im in g that these timekeeping and pay practices violate the FLSA. In particular, Plaintiffs a lleg e Perdue failed to compensate Plaintiffs and others similarly situated for all c o m p e n sa b le time including: (1) time spent clearing security and walking from security to tim e clock areas, (2) time spent donning and doffing required equipment integral and in d is p e n sa b le to principal work activities (i.e. PPE), (3) time spent walking to and from break a r e a s to designated time clock areas, (4) time spent waiting to clock in, and (5) for two u n p a id meal breaks. Plaintiffs amended the Complaint on July 5, 2007 (Doc. # 42) and

s o u g h t collective treatment under the FLSA opt-in provisions on November 5, 2007 (Doc. # 49). This Court permitted court supervised notice on February 25, 2008, and required that n o tic e be sent to all potential opt-in plaintiffs by May 9, 2008. (Doc. # 65.) Perdue then filed a Motion for Summary Judgment (Doc. # 78) in which it seeks to have the Court dismiss all

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n a m e d and opt-in plaintiffs' claims because Perdue pays Plaintiffs for all compensable time.4 P la in t if f s filed a Cross-Motion for Partial Summary Judgment (Doc. # 91) in which they ask th e Court to hold that donning and doffing of PPE is integral and indispensable to a principal a c tiv ity under the FLSA. Both the Motion and Cross-Motion are currently under submission a n d ripe for disposition. F in a lly, the Secretary of Labor sought leave to file a brief as amicus curae (Doc. # 1 3 5 ), which this Court granted (Doc. # 139). The Secretary filed her brief on December 5, 2 0 0 8 (Doc. # 141), and the parties responded. V. DISCUSSION A . The Fair Labor Standards Act C o n g re ss passed the FLSA in order that workers in the United States could enjoy w o rk in g conditions that would ensure a "minimum standard of living necessary for health, e f f ic ie n c y, and general well-being . . . ." 29 U.S.C. § 202(a). Among the numerous p ro v isio n s designed to further this end are those that make it unlawful for an employer to " e m p lo y" someone who is an employee for a workweek longer than forty hours unless the e m p lo ye e receives compensation for "employment" in excess of forty hours at a rate of at

A portion of the Motion carries the heading "Plaintiffs Cannot Create a Genuine Issue of Material Fact by Relying on Documents not Based on Personal Knowledge." The Court has construed this part of the Motion as a Motion to Strike. Because Perdue disputes the veracity of the declarations at issue, calling them "erroneous[]" and "inaccurate[]," rather than challenging their admissibility for purposes of considering these Motions, the Court, without making any determination about the ultimate admissibility of the documents, finds that Perdue's Motion to Strike is due to be denied. 10

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le a s t on and one-half times the regular hourly wage. See 29 U.S.C. §§ 207(a)(1), 215(a)(2). T h e FLSA defines "employ" as "to suffer or permit to work." 29 U.S.C. § 203(g). The s ta tu te does not contain a definition of "work," so the task of giving that term meaning has f a lle n to the courts. T h e Supreme Court has interpreted "work" or "employment" as "physical or mental e x e rtio n (whether burdensome or not) controlled or required by the employer and pursued n e c es s a rily and primarily for the benefit of the employer and his business." IBP, Inc. v. A lv a re z, 546 U.S. 21, 25 (2005). Whether time is spent predominantly for the employer's b e n e f it or for the employees' depends on the circumstances of the case. See Armour & Co. v . Wantock, 323 U.S. 126, 133 (1944). The Supreme Court initially held that "the statutory workweek includes all time during w h ich an employee is necessarily required to be on the employer's premises on duty or at a p re sc rib e d workplace." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946). C o n g re ss legislatively overturned this holding, however, with the Portal-to-Portal Act. U n d e r the terms of that Act, employers are not required to compensate their employees for tim e spent walking, riding, or traveling to and from the actual place where they perform their p r in c i p a l work activities. 29 U.S.C. § 254(a)(1). Principal activities are defined as those " w h ic h the employee is employed to perform." 29 C.F.R. § 790.8(a). The Act also excludes f ro m the definition of work activities that are "preliminary or postliminary to said principal a c tiv ity or activities, which occur either prior to the time on any particular workday at which

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s u c h employee commences, or subsequent to the time on any particular workday, at which h e ceases, such principal activity or activities." 29 U.S.C. § 254(a)(2). Together, these p ro v is io n s remove from the definition of work all activities that are not principal activities a n d all activities that are preliminary and postliminary to a workday. T h u s , the Supreme Court has stated that "`workday' is generally defined as `the period b e tw e en the commencement and completion on the same workday of an employee's principal a c tiv ity or activities.'" IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (2005) (quoting 29 C.F.R. § 7 9 0 .6 (b )). This concept is known as the "continuous workday rule." Id. Moreover, th e term principal activity or activities in Section 4 [of the Portal-to-Portal Act] e m b r a c e s all activities that are an integral and indispensable part of the p rin cip a l activities . . . . Thus, under Steiner, activities, such as the donning a n d doffing of specialized protective gear, that are performed either before or a f ter the regular work shift, on or off the production line, are compensable u n d e r the portal-to-portal provisions of the Fair Labor Standards Act if those a c tiv itie s are an integral and indispensable part of the principal activities for w h i c h covered workmen are employed and are not specifically excluded by S ec tio n 4(a)(1).

Id. at 29-30 (internal quotation marks omitted). Section 4(a)(1) (as codified at 29 U.S.C. § 2 5 4 ) provides that no employer can be liable under the FLSA for failing to compensate for (1 ) walking, riding, or traveling to and from the actual place of p e rf o rm a n c e of the principal activity or activities which such employee is employed to perform, and (2 ) activities which are preliminary to or postliminary to said principal a c tiv i ty or activities, w h ic h occur either prior to the time on any particular workday at which such e m p l o ye e commences, or subsequent to the time on any particular workday at 12

w h ic h he ceases, such principal activity or activities.

29 U.S.C. § 254(a). By its terms, § 254(a) des not apply to activities that occur during the c o n tin u o u s workday. See 29 U.S.C. § 254(a) (limiting exclusion to activities "prior to the tim e on any particular workday when such employee commences, or subsequent to the time o n any particular workday at which he ceases, such principal activity or activities"); see also A lv a re z, 546 U.S. at 37 (holding that walking time performed after an employee performs the f irs t principal activity and before the end of the last principal activity is not excluded by § 2 5 4 ( a ) ) . Finally, "the fact that certain preshift activities are necessary for employees to e n g a g e in their principal activities does not mean that those preshift activities are `integral a n d indispensable' to a `principal activity' . . . ." Alvarez, 546 U.S. at 40-41.

B. Whether Donning and Doffing PPE is Integral and Indispensable to a Principal Activity 5
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Plaintiffs claim this Court answered this question once before. They cite a portion of this Court's Memorandum Opinion and Order that granted Plaintiff's Motion for an Order Permitting Court Supervised Notice. (Doc. # 65.) This argument lacks merit, however. The prior statement of the Court was made in the course of determining whether there was a "reasonable basis" for why collective action status is appropriate. Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996). Moreover, the Court noted in the course of its earlier decision that the requisite determinations should be "made using a fairly lenient standard when the Court has minimal evidence, as is the case here." (Doc. # 65 1-2) (emphasis added). The summary judgment standard, on the other hand, requires that there be "no genuine issue as to any material fact," and that the Court view the evidence in the light most favorable to the non-moving party. Celotex, 477 U.S. at 322. Such was not the case when this Court made its prior statement. The Court in its earlier decision did not purport to make authoritative rulings on either matters of fact or matters of law. Quite to the contrary, the only question was whether there was a reasonable basis to support Plaintiffs' claims. There was, but that determination has little significance for purposes of these Motions, where the case has advanced significantly and the facts are not "minimal" but are instead well-developed. Therefore, the Court finds little merit to 13

Plaintiffs argue in their Cross-Motion for Partial Summary Judgment that the donning, d o f f in g , and sanitizing of PPE is integral and indispensable to the principal activity of p ro c e ss in g uncontaminated poultry and is therefore itself a compensable principal activity u n d e r the Portal-to-Portal Act, even though it is preliminary and postliminary. Plaintiffs ask th e Court to rule that such donning, doffing, and sanitizing is integral and indispensable as a matter of law. Perdue argues in its Motion for Summary Judgment that, to the contrary,

d o n n in g and doffing PPE is preliminary and postliminary to the principal activity of p ro c e ss in g poultry and is not compensable under the Portal-to-Portal Act because it is not in te g ra l and indispensable to that principal activity. For the reasons set forth below, the C o u r t has determined that Perdue's Motion is due to be denied in part and Plaintiffs' CrossM o tio n is also due to be denied. 1 . Legal Framework T h e Supreme Court has established that "activities performed either before or after th e regular work shift, on or off the production line, are compensable under the portal-top o rta l provisions of the [FLSA] if those activities are an integral and indispensable part of th e principal activities for which the covered workmen are employed." Steiner v. Mitchell, 3 5 0 U.S. 247, 256 (1956). Further, "any activity that is `integral and indispensable' to a `p rin c ip a l activity' is itself a `principal activity' under § 4(a) of the Portal-to-Portal Act." A lv a re z, 546 U.S. at 37. Such an activity commences the continuous workday and marks the Plaintiff's arguments that this issue was previously determined. 14

b e g in n in g of compensable time. Id. A court in the Eleventh Circuit must consider three factors to determine whether some p re lim in a ry or postliminary activity is integral and indispensable to a principal activity and is therefore itself a principal activity: (1) whether the activity is required by the employer, (2) whether the activity is necessary for the employee to perform his or her duties, and (3) whether the ac tiv ity primarily benefits the employer. B o n illa v. Baker Concrete Const., Inc., 487 F.3d 1340, 1344 (11th Cir. 2007) (citing Dunlop v . City Elec., Inc., 527 F.2d 394, 398-401 (5th Cir. 1976));6 see also Alvarez, 546 U.S. at 25 (d e f in in g "work" and "employment" as "physical or mental exertion . . . controlled or re q u ire d by the employer and pursued necessarily and primarily for the benefit of the e m p lo ye r and his business"). Whether a particular activity is integral and indispensable u n d e r the FLSA is a question of law, Birdwell v. City of Gadsden, 970 F.2d 802, 807 (11th C ir.1 9 9 2 )), though there is no clean analytical distinction between activities that are integral a n d indispensable and those that are not. Bonilla, 487 F.3d at 1344. The nature of the e m p lo ye e s ' duties, however, is a question of fact. Id. at 808 ("Certain sets of facts, if found b y a fact finder, will give rise to liability under the FLSA while other sets of facts will not. It is for the court to determine if a set of facts gives rise to liability; it is for the jury to d e te rm in e if those facts exist."). Specifically, whether time is spent predominantly for the

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. 15

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e m p lo ye r' s benefit or for the employees' depends on the circumstances of the case. See A r m o u r & Co., 323 U.S. at 133.7 P lain tiff s argue that "after Alvarez there can be little doubt that donning and doffing p ro te c tiv e gear at the beginning and end of the workday are principal activities." (Doc. # 91 2 .)8 They rely on Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860 (W.D. Wis. 2 0 0 7 ), Jordan v. IBP, Inc., 542 F. Supp. 2d 790 (M.D. Tenn. 2008), and Garcia v. Tyson F o o d s , Inc., 474 F. Supp. 2d 1240 (D. Kann. 2007). Perdue argues that "[i]t does not follow

There is some question in the Court's mind about whether the determination of the primary beneficiary is a question of law or a question of fact. There has been some confusion on the issue in the Fifth Circuit. See Bright v. Houston NW Med. Ctr. Survivor, Inc., 888 F.2d 1059 (5th Cir. 1989), vacated 934 F.2d 671, 674 (en banc). For instance, one panel, apparently unsure about how to treat a district court's conclusion that on-call time was primarily for the benefit of the employer, found the district court's "holding, if one of fact, clearly erroneous and, if one of law, plainly in error." Halferty v. Pulse Drug Co., Inc., 864 F.2d 1185, 1189 (5th Cir. 1989). The Supreme Court has also given conflicting signals, saying in one case that "whether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court," Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944). The Court has made a determination that whether an activity is primarily for the benefit of th e employer is a question of fact. This determination is based on the following dicta f ro m the Eleventh Circuit: "Of course, a jury may decide that the plaintiffs' off-duty time w a s not spent primarily for the benefit of the employer." Birdwell 970 F.2d at 808 n.4; see a l so Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1137 (5th Cir. 1984) ("Such evidence w a s sufficient to raise a fact question as to whether all the guards' free time, including s le e p in g and eating time, was spent primarily for the employer's benefit."). The issue c a n , of course, still be determined by a district court as a matter of law. See Birdwell, 970 F .2 d at 808. The Court in Alvarez did not address the question of whether the donning and doffing of particular types of gear were compensable, instead premising its holding on the fact that the lower court had already made that determination. Id. at 30 ("The principal question presented by these consolidated cases-both of which involve required protective gear that the courts below found integral and indispensable to the employees' work-is whether postdonning and predoffing walking time is specifically excluded by [the Portal-to-Portal Act]."); see also Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 802 n.14 (M.D. Tenn. 2008). 16
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th a t simply because Perdue and governmental agencies require poultry processing employees to wear certain items that the time spend donning or doffing this equipment is compensable." (D o c. # 108 1.) 2. Whether the Activity is Required by the Employer T h e re is no dispute that donning, doffing, and sanitizing PPE are required by Perdue. P e r d u e said it best: "There is no dispute that Perdue requires its employees to wear hair nets, b e a rd nets, ear plugs, and safety boots." (Doc. # 78 21.) Perdue's Dothan plant is subject to c o m p a n y-w id e "good manufacturing practices" ("GMP"). Perdue's GMP require employees to wear PPE during the performance of their jobs, and employees are required to confirm re c eip t of the GMP policy documents. Furthermore, employees are subject to discipline for v io la tio n s of Perdue's GMP.9 In light of these undisputed facts, it is clear that the donning a n d doffing of PPE is "required by the employer." See Jordan, 542 F. Supp. 2d at 805-806 (h o ld in g that donning and doffing of protective equipment was required by the employer w h ere the employer employed a similar system to ensure compliance with its procedures); F o x v. Tyson Foods, Inc., 2002 WL 32987224, No. CV-99-BE-1612-M, at *10 (N.D. Ala. F e b . 4, 2002). Perdue argues that "simply having a requirement to wear [PPE] does not automatically re n d e r the required activity `integral and indispensable' to the employees' principal jobs." (D o c . # 108 4.) They rely on Alvarez, which held in part that activities that are necessary are Violations include failure to wear hair nets, beard nets, earplugs, bump caps, boots, and safety glasses. 17
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n o t therefore integral and indispensable.1 0 Perdue's statement of the law is correct, as far as it goes. It does not go so far, however, as to resolve the issue currently under consideration. In particular, Perdue's argument fails to recognize that the law in the Eleventh Circuit that d e te rm in e s whether an activity is integral and indispensable requires this Court to consider th re e factors, not just one. Perdue's argument refuses to grapple with this reality by arguing th a t an activity that only meets the first factor is not integral and indispensable. Of course it is not. Satisfaction of the first factor is necessary but is not sufficient. The cases set out th re e factors, and Courts must consider all three before making a determination 1 1 P e rd u e also relies on Gorman v. Consol. Edison Corp., 488 F.3d 586, 592-93 (2d Cir. 2 0 0 7 ). In that case, the Second Circuit held that the terms "integral" and "indispensable" had

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Perdue also relies on Bonilla and Dunlop, the cases that supply the three factors. Perdue relies heavily on the following passage from Alvarez:

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We thus do not agree with [the employees] that the predonning waiting time at issue in this case is a "principal activity" under § 4(a). As [the employer] points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are "integral and indispensable" to a "principal activity" under Steiner. 546 U.S. at 40. The most relevant portion, however, is the Supreme Court's footnote to the first sentence quoted above: "our analysis would be different if [the employer] required its employees to arrive at a particular time in order to begin waiting." Id. at 40 n.8. This footnote clearly draws a distinction between those activities that are merely necessary and those that are both necessary and required by the employer. These two distinct requirements form two factors a Court in the Eleventh Circuit must consider when determining whether an activity is integral and indispensable, and it is no surprise that the Supreme Court held an activity that did not meet the "required by the employer" factor to be not integral and indispensable.

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se p a ra te meanings, and that both needed to be satisfied in order for plaintiffs' activities to b e compensable. Id. The Second Circuit created a test for whether an activity is integral and in d isp e n sa b le that rests on separate definitions for integral and indispensable, and set out in s ig n if ic a n t detail what those two terms mean (indispensable means necessary; integral means " `e ss e n tial to completeness'; `organically joined or linked'; `composed of constituent parts m a k in g a whole'"). 488 F.3d at 592. The Eleventh Circuit jurisprudence is different. Instea d of focusing on distinct meanings of the two words, it offers one set of three factors f o r determining whether an activity is integral and indispensable and does not divide the p h ra se into two separate units. It is not for this Court to determine the relative merits of the tw o approaches. Decisions of the Eleventh Circuit are binding on this court; decisions of the S e c o n d Circuit are not. Finally, Perdue relies on two district court cases: Alford v. Perdue Farms, Inc., 2007 W L 879413, No. 5:07-cv-87 (M.D. Ga. Mar. 28, 2008) and Anderson v. Pilgrim's Pride C o r p ., 147 F. Supp. 2d 556 (E.D. Tex. 2001). Anderson is not helpful for purposes of d eterm ining whether donning, doffing, and sanitizing PPE is integral and indispensable. In f a ct, that case stands only for the proposition that was shown to be unpersuasive above: "that d o n n i n g and doffing sanitary clothing is [not] a compensable, principal activity merely b e c a u s e both the employer and the USDA require the sanitary clothing to be worn." A n d e r s o n , 147 F. Supp. 2d at 563 (emphasis added).1 2 The Middle District of Georgia in The Anderson court held that the equipment in issue did not satisfy the third Eleventh Circuit factor: "In the instant case, the wearing of clean outergarments benefits the employees 19
12

A lfo r d relied heavily on the distinction drawn by the DOL between non-unique personal gear th a t employees may put on at home and unique specialized equipment that employees must p u t on and take off on site. The Secretary of Labor has made this argument in this case, and th e import of her position is discussed below. Moreover, Alford is not persuasive because th e court failed to either cite to or rely upon Bonilla, 487 F.3d at 1344, and Dunlop, 527 F.2d, a t 398-401, the two cases that supply the three factors Courts in this Circuit must consider w h e n determining whether an activity is integral and indispensable. 3. Whether the Activity is Necessary for the Employee to Perform His or Her Duties D o n n in g and doffing PPE is necessary for the employees to perform their duties. The q u e stio n of whether an activity is "necessary" for the employee to perform his or her duties is closely tied to the question of whether the employer requires the activity. In fact, another J u d g e of this Court has previously collapsed the two inquiries into one. See Davis v. Charoen P o k p h a n d (USA), Inc., 302 F. Supp. 2d 1314 (M.D. Ala. 2004) (Thompson, J.). Moreover, th e parties addressed the issues together in their briefs. Plaintiffs argue that donning and d o f f in g of PPE is necessary to their work. Perdue seems to agree.13 F e d e ra l regulations require poultry processing employees to wear PPE when

because it protects their street clothes from becoming soiled." 147 F. Supp. 2d at 563. Perdue appears to have abandoned argument regarding the necessity of donning, doffing, and sanitizing PPE in favor of exclusive focus on the argument dismissed in the last section (the fact that PPE is required does not make it compensable). Nowhere in its response does Perdue argue PPE is unnecessary to the employees' principal activities. (Doc. # 108 4-7.) 20
13

p ro c e s s in g poultry. See 21 C.F.R. § 110.10(b)(6) (hair nets and beard nets); 9 C.F.R. § 4 1 6 .5 (b ), 29 C.F.R. § 1910.136 & 21 C.F.R. § 110.10(b)(1) (boots); 21 C.F.R. § 110.10(b)(6) & 29 C.F.R. §1910.134 (bump caps); 29 C.F.R. § 1910.95 (earplugs); 29 C.F.R. § 1910.133 (s a f ety glasses).1 4 One meaning of "necessary" is "[r]equired by obligation, compulsion, or c o n v e n tio n ." The American Heritage Dictionary of the English Language (4th ed. 2006). U n d e r this definition, these regulations, no doubt obligatory and compulsory, clearly render d o n n in g , doffing, and sanitizing of PPE "necessary." See Fox, 2002 WL 32987224 at *9-10 (n o tin g that another chicken processing company could not continue its operations if it failed to follow OSHA and USDA regulations, particularly those requiring the use of hair nets, s m o c k s , boots, earplugs, arm guards, etc.). Additionally, as discussed in the previous section, Perdue requires employees to wear P P E and maintains a rigorous system of ensuring compliance with this requirement. The re q u ire m e n t that employees don and doff PPE is evidence that such activity is necessary to

Notable language in 21 C.F.R. § 110.10(b), which purports to require all PPE except glasses, states: All persons working in direct contact with food, food contact surfaces, and foodpackaging materials shall conform to hygienic practices while on duty to the extent necessary to protect against contamination of food . . . . The methods for maintaining cleanliness include, but are not limited to: (1) Wearing outer garments suitable to the operation in a manner that protects against the contamination of food, food-contact surfaces, or food-packaging materials. *** (6) Wearing, where appropriate, in an effective manner, hair nets, headbands, caps, beard covers, or other effective hair restraints. 21

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th e employees' principal activities. See Davis, 302 F. Supp. 2d at 1322 ("[t]hat an activity is required by an employer is evidence of its necessity"). The Court is satisfied, therefore, th a t donning and doffing of PPE is necessary to the employees' principal activities. 4 . Whether the Activity Primarily Benefits the Employer P la in t if f s' final hurdle is showing that donning, doffing, and sanitizing of PPE p rim a rily benefits Perdue. Plaintiffs claim that, while they may incidentally benefit from thes e activities, Perdue is the primary beneficiary. Perdue argues that it is not the primary b e n e f icia ry because the fact that protective equipment promotes safety does not mean it is f o r the benefit of the company. Perdue relies on the stated purposes of some of the pertinent re g u la tio n s , specifically 29 C.F.R. § 1910.132, and Anderson v. Pilgrim's Pride, Corp., 147 F . Supp. 2d at 561.1 5 According to Perdue, the Court may not presume that, simply because it requires the donning and doffing at issue, it is the primary beneficiary. Ultimately, the p rim a ry beneficiary of donning, doffing, and sanitizing PPE is a disputed issue of material The Court is not persuaded by Anderson because numerous points distinguish the cases. First, Anderson followed a bench trial, so the trial judge was able to use findings such as "the various processing employees complete the [sanitization] process in a matter of seconds" and "it is not uncommon to find employees putting on their apron, gloves, hairnet, and hearing protection as they walk to their individual work station." 147 F. Supp. 2d at 559. The Court also viewed a videotape of the process. Here, the court cannot find any such facts, and it was these facts that led the court to hold that donning, doffing, and sanitizing protective equipment "d[id] not involve `physical or mental exertion,' and, therefore, d[id] not qualify as work within the meaning of the FLSA." Id. Whether donning, doffing, and sanitizing requires exertion is not presently before the Court. In fact, Perdue does not appear to contest this conclusion. Instead, the issue is whether donning, doffing, and sanitizing is integral and indispensable, and Anderson's reasoning about exertion is unhelpful. Moreover, Anderson fails to recognize that the proper focus is on whether the activity was "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Alvarez, 546 U.S. at 25 (quoting Armour & Co. V. Wantock, 323 U.S. 126, 133 (1944)). 22
15

f a c t. Chao v. Tyson Foods, 568 F. Supp. 2d 1300, 1315 (N.D. Ala. 2008), is instructive. In that case, Tyson Foods required employees to wear a smock, hairnet, beard net, earplugs an d , depending on the department, safety vest, safety goggles, earplugs, cutting gloves, arm g u a rd s , rubber boots, and rubber or latex gloves. The court reasoned that "[t]he fact that D e f en d a n t may derive some benefit from its employees' use of protective outer gear, and f ro m the washing of these items at the end of the compensable work day, does not necessarily re n d e r Defendant the primary beneficiary thereof." Id. at 1315. P e r d u e points out that the stated purposes of some of the pertinent regulations, s p e c if ic a lly 29 C.F.R. § 1910.132, is to "protect employees from contamination, possible d i se a s e , and injury." (Doc. # 108 8 n.2.) Perdue cites 29 C.F.R. § 1910.132(a), which states: " [ p ] e r s o n a l protective equipment is required for first and second poultry processing e m p lo ye e s to do their job safely to comply with OSHA standards." However, Perdue ignores 2 1 C.F.R. §§ 110.10(b)(1), 110.10(b)(6) and 9 C.F.R. § 416.5(b). These regulations require v a rio u s pieces of PPE and are drawn from the Food and Drug Administration ("FDA") re g u latio n s and the Food Safety Inspection Service regulations. They provide as their p u rp o s e "disease control . . .[and] cleanliness, . . . ," 21 C.F.R. § 110.10, and "to ensure each p roc essin g plant is "operated in a manner sufficient to prevent the creation of insanitary c o n d itio n s and to ensure that product is not adulterated," 9 C.F.R. § 416.1. Moreover, p u rs u a n t to 21 C.F.R. § 110.10, the OSHA regulation, "[a]ll persons working in direct

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c o n t a c t with food, food-contact surfaces, and food-packaging materials shall conform to h yg ie n ic practices while on duty to the extent necessary to protect against contamination of f o o d ." In light of the disparate purposes of the overlapping OSHA and FDA regulations, it is clear that there is a reasonable dispute concerning the material fact of who primarily b e n e fits from the employees donning and doffing these items. The benefit Perdue derives f ro m ensuring employees don and doff PPE (as evinced by the FDA regulations and the O S H A regulations to a lesser extent) is set against benefits that inure to Plaintiff (as evinced b y the OSHA regulations). Moreover, in our free-market economy, the sale of fresh, u n c o n tam in a ted poultry results in significant benefits to the employer, just as the sale of stale o r contaminated poultry would result in significant harm to the company. The Court also n o te s that the chicken-consuming public is also a significant beneficiary. Therefore, while Perdue does receive some benefit from the activity in issue, a q u e stio n of material fact remains as to who is the primary beneficiary. Because disputed q u e stio n s of material fact remain, Plaintiffs' Cross-Motion for Partial Summary Judgment is due to be denied and Perdue's Motion for Summary Judgment is due to be denied in part. 5 . The Position of the Secretary of Labor T h e Secretary of Labor filed a brief as amicus curiae in support of Perdue in this case. In her brief, she takes the position that "the donning and doffing of items that employees may p u t on and take off at home are not integral or indispensable to the employees' principal w o rk activities." (Doc. # 141 1.) She points to a regulation that provides: "[i]f an employee

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in a chemical plant, for example, cannot perform his principal activities without putting on c e rta in clothes, changing clothes on the employer's premises at the beginning and end of the w o rk d a y would be in integral part of the employee's principal activity." 29 C.F.R. § 790.8(c) (em p h asis supplied by the Secretary).16 T h e Wage and Hour Division of the Employment Standards Administration, United S ta te s Department of Labor, which administers the FLSA, has long taken the position that " [ e]m p lo ye e s who dress to go to work in the morning are not working while dressing even th o u g h the uniforms they put on at home are required to be used at the plant during working h o u rs ." (Doc. # 141 Ex. A.) The Wage and Hour Administrator reiterated this position f o llo w in g Alvarez in 2006, stating in a Wage and Hour Memorandum that "donning and d o f f in g of required gear is within the continuous workday only when the employer or the n a tu re of the job mandates that it take place on the employer's premises. It is our

lo n g s ta n d in g position that if employees have the option and ability to change into the re q u ire d gear at home, changing into that gear is not a principal activity, even when it takes p la c e at the plant." (Doc. # 141 Ex. B.) Where donning and doffing may be carried out at h o m e , it is the position of the Secretary that such activity is not compensable. The position of the Secretary of Labor "constitute[s] a body of experience and in f o rm e d judgment to which courts and litigants may properly resort for guidance." Skidmore

The regulation also provides that "[s]uch a situation may exist where the changing of clothes on the employer's premises is required by law, by rules of the employer, or by the nature of the work." 29 C.F.R. § 790.8 n.65 (emphasis supplied by the Secretary). 25

16

v . Swift & Co., 323 U.S. 134, 140 (1944); see also Burton v. Hillsborough County, Fla., 181 F e d . Appx. 829, 834 n.4 (11th Cir. 2006).1 7 However, the Court is not convinced that the S ec retary's distinction is the law in this Circuit. The only binding case provided to the Court ( th e Court has been unable to locate others) in support of the Secretary's argument is Dunlop, 5 2 7 F.2d at 398, which does not in any way rely on whether donning and doffing takes place a t home or on the employer's premises. To the contrary, this binding case creates a problem f o r the Secretary's position, as it established that there are three factors a Court in this Circuit m u s t consider to determine whether an activity is integral and indispensable. Additionally, the Secretary claims that "courts have consistently recognized the bright lin e drawn between the compensable changing into uniforms when the change is required to b e performed on the employer's premises, and non-compensable changing at home." (Doc. # 141 7.) However, the Secretary provides examples from the Court of Claims, the Ninth C irc u it, the Eastern District of Virginia, the Southern and Northern Districts of California, th e District of Maryland, and the Western District of Wisconsin. The Secretary cites no E le v e n th Circuit cases and no cases decided under Eleventh Circuit law that rely on her d is tin c tio n . There is one such case from the Middle District of Georgia, Alford v. Perdue F a r m s, 2008 WL 879413. There are two problems with Alford as support for the Secretary's

The position of the Secretary is entitled only to the less deferential Skidmore deference, rather than the more deferential Chevron deference, because the position of the secretary is "not a promulgated regulation because Congress did not authorize the Secretary of Labor to issue regulations regarding the scope of exceptions to [the Portal to Portal Act.]" Bonilla, 487 F.3d at 1342-43; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.837 (1984); Skidmore, 323 U.S. at 134. 26

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p o sitio n . First, that case simply relies on the Secretary's position on this issue, and is th e re f o re not persuasive authority to support the Secretary's position. Moreover, as discussed a b o v e , the persuasive power of Alford is severely undercut by the court's failure to either cite to or rely upon Bonilla, 487 F.3d at 1344, and Dunlop, 527 F.2d, at 398-401, the two cases th a t provide the three factors a Court in this Circuit must consider when determining whether a n activity is integral and indispensable.1 8 In fact, with the single exception of Alford, courts in this Circuit have uniformly ignored or dismissed the distinction between donning at home a n d donning on the employer's premises when equipment like PPE was in issue. See, e.g., C h a o , 568 F. Supp. 2d at 1311-15; Fox, 2002 WL 32987224 at * 7-8;1 9 Burks, 571 F. Supp. 2 d at 1240-46; Davis, 302 F. Supp. 2d at 1320-23. The uniformity of the cases in this Circuit is not surprising because there is not a re q u ire m e n t in this Circuit that integral and indispensable activities take place on the e m p lo ye r' s premises. See Bonilla, 487 F.3d at 1344; Dunlop, 527 F.2d, at 398-401; see also L e m m o n v. City of San Laredo, 538 F. Supp. 2d 1200 (N.D. Cal. 2007) (refusing to "inject a location limitation into the analysis for finding compensability under the FLSA" in light o f the fact that there is no requirement in the Ninth Circuit that integral and indispensable a c tiv itie s take place on the employers's premises). In fact, as discussed extensively above,

Additionally, Alford relied upon a distinction between "generic" and "specialized" gear. This distinction is not sound, as it is inconsistent with Alvarez, 546 U.S. at 30-32, 41 n.8, and the Secretary has noted this problem with the analysis of the Alford court. (Doc. # 141 10 n.3.) This case also, appropriately, calls into doubt the Secretary's assertion that donning and doffing PPE is "changing clothes." See Fox, 2002 WL 32987224 at *7-8. 27
19

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a Court in this Circuit must consider three factors to determine whether an activity is integral a n d indispensable, and none of those factors involves the location (at home or at the w o rk p la c e) of the activity. Therefore, the Court is convinced that the home/work distinction h a s no power to trump the three factors set out in Dunlop and Bonilla.2 0 C . Walking P e rd u e also argues that the time Plaintiffs spend walking is not compensable. P la in tif f s claim there are six periods of uncompensated, compensable walking that occur d u rin g each shift. They claim that they are to be compensated each time they must walk from w h e re the Kronos clocks are located, through the production area, and to the break area, and f o r the times they walk the same path in the other direction. Plaintiffs must walk this path o n c e prior to the start of their shift, four times incident to meal breaks (i.e. once at the b e g in n in g of each break, and once at the end of each break), and once following the end of th e ir shift. The compensability of this walk time depends wholly on whether donning and d o f f i n g PPE is integral and indispensable to a principal activity. Because this question req u ires the resolution of disputed issues of material fact, Perdue's Motion for Summary

The Court also notes that, assuming the correctness of the Secretary's distinction, if " e m p lo ye e s have the option and ability to change into the required gear at home, c h a n g in g into that gear is not a principal activity, even when it takes place at the plant." (D o c . # 141 7) (emphasis added). Or, in another of the Secretary's articulations, "where it [is] safe to do so, an employee who changes his work clothes at home is not entitled to be c o m p e n s a te d for changing." (Id.) (citing Apperson v. Exxon Corp. 24 WH Cases 364, 370 (E .D . Cal. 1979)). Plaintiffs have submitted the declarations of fifteen plaintiffs who c la im that it is unsafe to wear PPE to or from home. 28

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J u d g m e n t is due to be denied with respect to walk time. As discussed more fully above, the "`workday' is . . . `the period between the c o m m e n c em e n t and completion on the same workday of an employee's principal activity or a c tiv itie s.'" Alvarez, 546 U.S. at 29 (quoting 29 C.F.R. § 790.6(b)). This concept is known a s the "continuous workday rule." Id. "[D]uring a continuous workday, any walking time th a t occurs after the beginning of the employee's first principal activity and before the end o f the employee's last principal activity is excluded from the scope of [Section 254(a)], and a s a result is covered by the FLSA." Alvarez, 546 U.S. at 37; see Abbe v. City of San Diego, N o s . 05cv1629, 06cv0538, 2007 WL 4146696 at *9 (S.D. Cal. Nov. 9, 2007) ("Walking and trav el time is compensable if it takes the employee from one principal activity to another. It is not compensable if it takes the employee between preliminary activities, or between a p re lim in a ry activity and principal activities at the workplace."). Under Plaintiffs version of the facts and law in this case, the time they spend walking is part of the continuous workday and is therefore compensable. The walking is part of the c o n tin u o u s workday because the workday begins with the donning of PPE prior to entering th e production floor. Because, they claim, donning PPE is integral and indispensable to a p rin c ip a l activity, and is therefore itself a principal activity, the donning of PPE serves to c o m m e n c e the workday. Perdue, on the other hand, as discussed more fully above, argues th a t donning PPE is not integral and indispensable to a principal activity, and therefore does n o t mark the start of the workday. Perdue claims that the workday begins with the donning

29

o f Departmental Equipment, which occurs after walking and clocking in. Likewise, the p a rtie s disagree about whether the last principal activity is doffing Departmental Equipment o r doffing PPE. Similarly, these disputes are determinative of the Motion with respect to w a lk in g incident to meal periods, because whether that walking is a compensable activity d e p e n d s on answers to these disputed questions. Because a resolution of the underlying f a c tu a l issue is necessary to make a determination regarding the compensability of the walk tim e in issue, Perdue's Motion for Summary Judgment is due to be denied with respect to w a lk time.2 1 D . Waiting P e rd u e argues that the time Plaintiffs spend waiting to clock in is not compensable. A s a general matter, time spent waiting to clock in or out is not compensable. See 29 C.F.R. § 790.8(c) ("activities such as checking in and out and waiting in line to do so would not o rd in a rily be regarded as integral parts of the principal activity or activities"); id. § 790.7(g) (" c h ec k in g in and out and waiting in line to do so, changing clothes, washing up or sh o w ering , and waiting in line to receive pay checks are not normally compensable"); A lv a re z, 546 U.S. at 40-42 (holding that waiting to don protective gear or waiting to clock

To the extent Plaintiffs seek compensation for time spent walking from where they clear security to the break area or locker room, the Court finds that Perdue is entitled to summary judgment on their claim. As discussed below in Section V.F., clearing security is not compensable, and so cannot serve to start the continuous workday. Walking between where Plaintiffs clear security to where they don PPE therefore occurs prior to the start of the continuous workday and is not compensable. Perdue is entitled to summary judgment to the extent Plaintiffs claim the time spent walking from where they clear security to the employee rest area or locker room. See Alvarez, 546 U.S. at 37; Abbe, 2007 WL 4146696 at *9. 30

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in was comfortably a preliminary activity); see also Vega ex rel. Trevino v. Gasper, 36 F.3d 4 1 7 , 425 (5th Cir. 1994) ("Wait time is compensable when it is part of a principal activity of th e employee, but not if it is a preliminary or postliminary activity."). However, under A lv a re z, the same rule that applies to walking applies to waiting: if it occurs between the first a n d last principal activities, it is compensable. See 546 U.S. at 40; see also Jordan, 542 F. S u p p . 2d at 805-06 (noting that activities like walking and waiting that occurred between w h a t the plaintiffs claimed was the first and last principal activities would be compensable u n d e r plaintiffs' facts, regardless of other factual disputes surrounding those interstitial a c tiv itie s); Vega, 36 F.3d at 425. Plaintiffs claim they suffer three periods of uncompensated, c o m p e n sa b le wait time: once waiting to clock in at the start of the shift and twice waiting to c lo c k in at the end of each meal period. The same unresolved factual question that precluded a grant of summary judgment as to walking in the last section prevents a grant here. T h e re f o re , Perdue's motion for summary judgment is due to be denied as to both categories o f wait time. E . Meal Breaks P e rd u e also moved for summary judgment on Plaintiffs' claims that they are entitled to compensation for the two unpaid thirty-minute meal breaks required by Perdue each shift. P e rd u e claims that, because there is no genuine issue of material fact that the employees do n o t engage in compensable activities during their unpaid meal periods, they are not entitled to compensation for those periods. Plaintiffs counter that they do in fact perform

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c o m p e n s a b le activities during their thirty-minute meal breaks. In particular, they claim they w alk from where they clock out to the break area, doff PPE, don PPE, and walk to where th e y clock in (and that sometimes they wait to clock in). Moreover, Plaintiffs argue that the tw o thirty-minute periods are not appropriately timed for regularly scheduled meals. Perdue c o u n te rs that Plaintiffs undertake no compensable activity during the meal periods. This Court recently outlined the law applicable to this dispute: The Secretary of Labor has promulgated two regulations pertaining to meal a n d rest periods. The first, entitled "Rest", states: R e st periods of short duration, running from 5 minutes to about 2 0 minutes, are common in industry. They promote the e f fic ie n c y of the employee and are customarily paid for as w o rk in g time. They must be counted as hours worked. C o m p e n s a b le time of rest periods may not be offset against o th e r working time such as compensable waiting time or on-call tim e . 2 9 C.F.R. § 785.18. This regulation is particularly relevant, not only for what it says, but also for what it does not say. While the regulation states that rest p erio d s "running from 5 minutes to about 20 minutes" are common in industry a n d must be counted as hours worked, the regulation does not say that rest p erio d s of more than 20 minutes can automatically be excluded from hours w o rk e d . T h e second regulation is entitled "Meal" and states: B o n a fide meal periods are not worktime. Bona fide meal p e r io d s do not include coffee breaks or time for snacks. These a re rest periods. The employee must be completely relieved from d u ty for the purposes of eating regular meals. Ordinarily 30 m in u te s or more is long enough for a bona fide meal period. A s h o rte r period may be long enough under special conditions. The e m p l o ye e is not relieved if he is required to perform any duties, w h e th e r active or inactive, while eating. 32

2 9 C.F.R. § 785.19 (emphasis added). The first key phrase in this regulation is that the employee must be completely relieved from duty during the meal p e rio d . The second key phrase is that the purpose of the meal period must be to eat a regular meal. C o u rts have held entire meal breaks to be compensable under the FLSA when e m p lo ye e s continue to have job responsibilities during their breaks. See K o h lh e im v. Glynn County, 915 F.2d 1473, 1477 (11th Cir.1990) ("[T]he e ss e n tia l consideration in determining whether a meal period is a bona fide m e a l period or a compensable rest period is whether the employees are in fact re liev e d from work for the purpose of eating a regularly scheduled meal."); see a ls o Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 64-65 (2d C ir .1 9 9 7 ) (holding meal periods compensable "work" under FLSA if em p lo yee s perform duties predominantly for the benefit of the employer); H en so n v. Pulaski County Sheriff Dep't, 6 F.3d 531, 534-35 (8th Cir.1993) (sam e). B u r k s, 571 F. Supp. 2d at 1247-48; see also Davis, 302 F. Supp. 2d at 1326. Here, there is a disputed issue of fact that will ultimately determine the c o m p e n s a b ility of the meal periods. Specifically, as discussed in the two prior sections, th e re is a dispute about whether donning and doffing PPE is primarily for the benefit of the e m p l o ye r . Therefore, whether that activity is integral and indispensable to a principal a c tiv ity cannot be resolved at this point. If donning and doffing is not integral and in d isp e n sa b le, then neither the donning and doffing nor the walking (and waiting) is c o m p e n s a b le . Under this scenario, there would be no compensable activity taking place d u rin g the meal period and the meal period would therefore not be compensable (subject to th e caveat in the next paragraph below). This disputed issue of fact precludes a

d e te rm in a tio n either that donning and doffing, walking, and waiting are compensable, and,

33

th e re f o re , also precludes a determination about whether the meal periods are compensable. P la in tif f s also point to the timing of the meal periods and claim that they are not for the purpose of eating regularly scheduled meals. As this Court has said before: "th[e] Court is not convinced that two thirty minute "meal/rest periods" in one nine-hour day are for the p u rp o s e of eating a `regularly scheduled meal.'" Burks, 571 F. Supp. 2d at 1248.2 2 Hence, P e rd u e 's motion is due to be denied with respect to this issue. F. Time Spent Clearing Security P lain tiff s claim they are entitled to compensation for "the time it takes security to c le a r them and allow them into the facility and the compensable time afterwards prior to the c o m m e n c em e n t of processing work." (Doc. # 42 ¶ 15.) As discussed above, on their way to the facility entrance, employees walk through a gate in a chain link fence and display their P e rd u e identification cards to a security guard. While employees do not normally have to s to p at the security checkpoint, they are subject to having their belongings searched. Also, e m p lo ye e s who do not have their identification cards must wait for identification by the p la n t office. Perdue argues it is entitled to summary judgment on the issue of

c o m p e n s a b ility of this time because clearing security is preliminary to a principal activity. T h e law is clear that Plaintiffs are not entitled to compensation for this time. See Bonilla, 4 8 7 F.3d at 1344-45 (holding that time spent passing through security was not compensable u n d e r the FLSA because the screening was not integral and indispensable to a principal The meal breaks for the morning shift occur at approximately 10:20 AM and 1:20 PM. The night shift meal breaks occur at approximately 1:00 AM and 4:00 AM. 34
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a c tiv ity); Gorman, 488 F.3d at 593. Therefore, Perdue's Motion is due to be granted with re s p e c t to the compensability of time spent clearing security. G. De Minimis Doctrine P e r d u e ' s final argument is that Plaintiffs' uncompensated activity is de minimis as a matter of law. When a claim under the FLSA "concerns only a few seconds or minutes o f work beyond the scheduled working hours, such trifles may be disregarded. Split-second a b su rd itie s are not justified by the actualities of working conditions or by the policy of the [ F L S A ] . It is only when an employee is required to give up a substantial measure of his time a n d effort that compensable working time is involved." Mt. Clemens Pottery Co., 328 U.S. a t 680; 29 C.F.R. § 785.47