                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3565
                        ___________________________

                             Cindy Adair; Paul Straub,

                      lllllllllllllllllllll Plaintiffs - Appellees,

                                           v.

 ConAgra Foods, Inc. a Delaware corporation; ConAgra Foods Packaged Foods,
                LLC a Delaware Limited Liability Company,

                     lllllllllllllllllllll Defendants - Appellants.
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 11, 2013
                              Filed: August 30, 2013
                                  ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

      This interlocutory appeal arises out of an action brought by two laborers
against their employer, ConAgra Foods, Inc., pursuant to 29 U.S.C. § 216(b). The
laborers allege that ConAgra violated the Fair Labor Standards Act by, among other
things, failing to compensate them and others similarly situated for time spent
walking between changing stations where they don and doff their uniforms and the
time clock where they punch in and out for the day. The district court denied
ConAgra’s motion for summary judgment on this walking time and granted the
parties’ joint motion to certify the issue for interlocutory appeal. We granted
permission to appeal, and we reverse the order of the district court.

                                          I.

       Since 1980, ConAgra has operated a facility in Marshall, Missouri, where it
produces frozen foods. ConAgra employs hourly production and maintenance
laborers at the Marshall Facility. Those laborers are represented by either the United
Food and Commercial Workers Union or the International Brotherhood of Teamsters
(collectively, “the Unions”), and have been represented by the Unions continuously
since ConAgra acquired the facility.

       ConAgra requires laborers at the Marshall Facility to wear certain protective
gear, pursuant to a collective bargaining agreement. To ensure that the products made
at the facility are sanitary, ConAgra and the Unions have agreed that ConAgra will
“furnish and launder” this gear, which remains at the facility overnight. Because their
uniforms are kept on site, the laborers must change into and out of them in changing
stations at the Marshall Facility—that is, they cannot arrive at or depart the facility
while dressed for work. After donning their uniforms, the laborers walk to a time
clock where they punch in for the day; at the end of the day, they punch out at the
time clock and then walk back to the changing stations to doff their uniforms.
ConAgra has never compensated the laborers at the Marshall Facility for time spent
changing into and out of uniforms, or for time spent walking in either direction
between changing stations and the time clock.

      Two laborers at the Marshall Facility brought this action on behalf of
themselves and others similarly situated. They claimed, as relevant to this appeal,
that ConAgra violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by

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failing to compensate them for (1) time spent changing into and out of uniforms, and
(2) time spent walking between changing stations and the time clock. The
complainants sought unpaid wages and other forms of relief.

       The Act requires employers to pay covered employees at a rate of time-and-a-
half for hours worked in excess of forty hours in a week. 29 U.S.C. § 207(a)(1). The
statute, however, does not define either “work” or “workday.” As a general matter,
an employee’s workday begins with the first “principal activity” of his employment,
and ends with the last such activity. 29 C.F.R. § 790.6(b). For time spent performing
a nonprincipal activity to count toward an employee’s workweek, then, that activity
must be performed between the first and last principal activities of the day.

       The scope of the workday has limits. Congress twice amended the Act in
response to the Supreme Court’s broad understanding of that concept. First, in 1947,
Congress passed the Portal-to-Portal Act, § 4 of which excludes from the workday
time spent “walking, riding, or traveling to and from the actual place of performance
of the principal activity or activities which [an] employee is employed to perform,”
and time spent performing “activities which are preliminary to or postliminary to said
principal activity or activities.” 29 U.S.C. § 254(a). Second, two years later,
Congress added § 3(o) of the Act, by which it specifically excluded “time spent in
changing clothes” from “the hours for which an employee is employed,” provided that
time has been excluded “by the express terms of or by custom or practice under a
bona fide collective-bargaining agreement.” 29 U.S.C. § 203(o).

       In the district court, the laborers first argued that ConAgra was required to
compensate them for time spent changing clothes, because § 203(o) and its exclusion
for such time does not apply. They urged that neither of the two conditions required
by that statutory exclusion is satisfied: the protective gear they are required to wear
does not fall within the statutory term “clothes,” and no express term of, or custom



                                         -3-
or practice under, a collective bargaining agreement establishes that donning and
doffing are not compensable activities.

       The district court rejected these contentions, ruling that the time spent changing
clothes was lawfully excluded under § 203(o): the protective gear worn by laborers
at the Marshall Facility constitutes “clothes,” and clothes-changing time is
uncompensated by custom or practice under a bona fide collective bargaining
agreement. So the court concluded that the laborers’ changing time is excluded from
their hours, and granted ConAgra’s motion for summary judgment on that issue.1

       The laborers argued in the alternative that donning and doffing their uniforms
are principal activities of their employment, even if changing time is excluded from
their hours under § 203(o) and therefore uncompensated. Because their day
commences and concludes in the changing stations rather than at the time clock, the
laborers contend that time spent walking between the changing stations and the time
clock must be included in their hours.

      The district court noted “substantial disagreement in the case law” on the issue,
but concluded that an activity’s “principal” nature is unaffected by whether it is
compensable. The court then determined that donning and doffing uniforms begin
and end the workday, because wearing those uniforms is “integral and indispensable
to [the laborers’] principal work activity,” whether or not the employees are
compensated for time spent changing clothes. As such, the court denied ConAgra’s



      1
       The Supreme Court granted certiorari to consider the meaning of “changing
clothes” under § 203(o), see Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir.
2012), cert. granted, 133 S. Ct. 1240 (U.S. Feb. 19, 2013) (No. 12-417), but the
laborers agreed at oral argument to waive their right to appeal the district court’s
determination in this case that their uniforms constitute “clothes.” Oral Arg. at 23:40-
24:28.

                                          -4-
motion for summary judgment on the walking-time issue. The court then granted the
parties’ joint motion to certify that issue for appeal.

                                            II.

       The laborers contend that when the time walking to and from the time clock is
included, they worked more than forty hours per week and must be compensated
accordingly. The Act provides that an employer must compensate a covered
employee “for a workweek longer than forty hours . . . at a rate not less than one and
one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). A
workweek is a collection of workdays, and a “workday” is “the period between the
commencement and completion on the same workday of an employee’s principal
activity or activities.” 29 C.F.R. § 790.6(b) (emphasis added). The laborers maintain
that even though their time spent changing clothes is not compensable because of a
custom or practice under the collective bargaining agreement, it is still a “principal
activity” that begins and ends the workday. It follows, they contend, that the time
walking to and from the clock is part of the workday and workweek that must be
compensated.

      The Act, however, links the concept of principal activity to employment. In
providing that an employer need not compensate an employee for walking to and
from the place of performing a principal activity, or for conducting preliminary or
postliminary activities, the statute contemplates that a “principal activity” is one
“which such employee is employed to perform.” 29 U.S.C. § 254(a)(1) (emphasis
added). The regulations of the Department of Labor reinforce this point. 29 C.F.R.
§ 790.8(a) (“The ‘principal’ activities referred to in the statute are activities which the
employee is ‘employed to perform.’”). In other words, if the employee is not
“employed to perform” a particular activity, even if that activity may be basic to the
employee’s work, then it is not a principal activity that begins or ends the workday.



                                           -5-
       We know from § 203(o) and the custom or practice under the collective
bargaining agreement that the laborers in this case are not employed to perform their
changing of clothes. Section 203(o) provides that “any time spent in changing clothes
or washing at the beginning or end of each workday” is excluded from “the hours for
which an employee is employed,” so long as those hours have been “excluded from
measured working time” by custom or practice under a collective bargaining
agreement. 29 U.S.C. § 203(o) (emphasis added). The “clear implication” of
§ 203(o) is “that clothes changing and washing, which are otherwise a part of the
principal activity, may be expressly excluded from coverage by agreement.” Steiner
v. Mitchell, 350 U.S. 247, 255 (1956) (emphasis added). The clothes-changing time
of the laborers here was excluded “by custom or practice” under the collective
bargaining agreement, so the hours spent changing clothes are not “hours for which
an employee is employed.” 29 U.S.C. § 203(o). Reading § 254(a) and § 203(o)
together thus leads to the conclusion that the changing of clothes is not a principal
activity that begins and ends the workday, because it is not an activity the employee
is employed to perform. See Sandifer v. U.S. Steel Corp., 678 F.3d 590, 596-97 (7th
Cir. 2012), cert. granted on other grounds, 133 S. Ct. 1240 (U.S. Feb. 19, 2013) (No.
12-417). But see Franklin v. Kellogg Co., 619 F.3d 604, 619 (6th Cir. 2010).

       To be sure, IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), like Steiner, said that an
activity that is “integral and indispensable to a principal activity is itself a principal
activity.” Id. at 37 (internal quotations omitted). But the parties in Alvarez had no
collective bargaining agreement that excluded donning and doffing from the hours
for which employees were employed. Because § 203(o) did not figure into the
Court’s analysis, the conclusion that walking time was compensable in that instance
does not control here. Alvarez relied heavily on Steiner, see id. at 33, which in turn
contemplated that activities that are “otherwise a part of the principal activity” may
be excluded by agreement. 350 U.S. at 255.




                                           -6-
       We acknowledge the Department of Labor’s current position that an activity
excluded from the workday under § 203(o) can constitute a principal activity, but we
deem it unpersuasive. See U.S. Dep’t of Labor, Opinion Letter, 2010 WL 2468195,
at 4 (June 16, 2010). The Department’s views on whether excluded activities can be
principal activities have changed with the vicissitudes of electoral winds, with no
reference to its experience or expertise in the matter. Compare id., with U.S. Dep’t
of Labor, Opinion Letter, 2007 WL 2066454, at 1 (May 14, 2007). Given this
inconsistency, the Department’s position is “entitled to considerably less deference
than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446
n.30 (1987) (internal quotation omitted). Indeed, for this reason, all but one court of
appeals to consider the Department’s positions in this and similar contexts have
decided not to defer to the “gyrating agency letters on the subject.” Sepulveda v.
Allen Family Foods, Inc., 591 F.3d 209, 216 n.3 (4th Cir. 2009); see Sandifer, 678
F.3d at 599; Salazar v. Butterball, LLC, 644 F.3d 1130, 1139 (10th Cir. 2011);
Franklin, 619 F.3d at 612-14; Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir.
2003). But see Anderson v. Cagle’s Inc., 488 F.3d 945, 956-57 (11th Cir. 2007).

        In summary, the time spent by the laborers donning and doffing their uniforms
is excluded by agreement from the hours for which they are employed. As such,
donning and doffing is not an activity that the laborers are employed to perform, and
it is therefore not a principal activity that begins and ends the workday. It follows
that time spent walking between the clothes-changing stations and the time clock is
not part of the workday and workweek for which the employer is liable to pay
overtime compensation under the Act.

                                   *      *       *

     The order of the district court denying ConAgra’s motion for summary
judgment is reversed, and the case is remanded for further proceedings.
                       ______________________________

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