Two Colorado poultry plant production workers sued to have their employer pay them—and other members of their class—for the time they spent "donning and doffing" what's called personal protective equipment. In preparation for cutting up turkeys, they were required to put on aprons, frocks, gloves, plastic sleeves, hard hats, special footwear, arm guards, and knife guard before their shifts began.

What happened. As you can imagine, the workers employed at a Butterball plant in Longmont also had to remove the equipment for their morning break, put it back on, remove it for the lunch break, and so on to the end of the day. And, they had to walk back and forth from the donning and doffing area to the production line—all on unpaid time.

As judges learned, prior to 2009, when the suit reached federal district court, workers had never been paid for those activities. Butterball bought the plant in 2006 from ConAgra, which had not paid for the time, and the issue was not mentioned in the workers' collective bargaining agreement, nor had it ever been negotiated. That was one problem, since the Fair Labor Standards Act (FLSA) appears to exempt from payment such time if has been "excluded … by custom or practice" or under a union contract. But there was another problem: The federal Department of Labor (DOL) has changed its opinion on the issue several times. Does such safety equipment qualify as "clothes"?

Turns out it depends on when you ask. In 1997, under the Bush administration, DOL issued an opinion letter saying that such protective equipment is clothing; FLSA says that employees can be asked to change their clothes and wash without compensation. But in the spring of 2010, the agency reversed itself and announced that the gear is not clothing. Faced with those two issues, the district judge ruled in Butterball's favor. The two workers appealed to the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

What the court said. Appellate judges noted that the 4th (MD, NC, SC, VA, WV), 5th (LA, MS, TX), 6th (KY, MI, OH, TN), 7th (IL, IN, WI), and 11th (AL, FL, GA) Circuits have agreed with this ruling, but the 9th (AK, AZ, CA, HI, ID, MT, NV, OR, WA) has not. One employment law expert noted that the 10th Circuit's ruling here is unhelpful, but which way an employer decides to go will depend on where it does business. Salazar v. Butterball, U.S. Court of Appeals for the 10th Circuit, No. 10-1154 (2011).

Point to remember: In addition to your location, any position that your workers' union agreements or your own customs and practices on this issue will give you some guidance.