Uniform-changing time as hours worked, and the effect of a CBA

STATE OF CALIFORNIA PETE WILSON, Governor

DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
45 Fremont Street, Suite 3220
San Francisco, CA 94105
(415) 975-2060

MILES E. LOCKER, Chief Counsel

December 23, 1998

Leah E. Glynn
Wohlner Kaplon Phillips Young & Barsh
15760 Ventura Boulevard, Suite 1510
Encino, CA 91436

Re: Whether Time Spent Changing Into or Out of Required Uniforms Constitutes "Hours Worked" and
the Effect of a Collective Bargaining Agreement on Determining "Hours Worked"

Dear Ms. Glynn:

This is in response to your letter, dated December 11, 1998, in which you requested an opinion
letter¹ from the Division of Labor Standards Enforcement as to whether time spent by employees
of a theme park changing into or out of uniforms that they are required to wear and that are
provided by the employer constitutes "hours worked" within the meaning of the applicable Wage
Order.

The facts, as presented to my office in an earlier letter from your firm, are as follows: The
employees are not allowed to take the uniforms home, and are required to pick up the uniforms
from a central wardrobe facility, which is approximately an eight to ten minute walk from employee
dressing rooms. The employees are required to wait on line, often with hundreds of other
employees, to obtain their uniforms, and must then change into their uniforms before being
allowed to clock in. During peak tourist periods, the wait to obtain uniforms may exceed a half
hour. Employees are not compensated for any of this time prior to clocking in. At the end of their
work shifts, employees go to a holding area, from which they are released at a set time. The
employees remain on the clock for 12 minutes from the time they are released from this holding
facility. However, after their release, the employees must change back out of their uniforms, walk
back to the central wardrobe facility, wait on line and return the uniforms. The time spent
engaged in these post-release activities far exceeds the 12 minutes of on-clock time.

As you are no doubt aware, after our receipt of this initial letter we received correspondence
from the attorney representing this theme park, asserting that the employees in question are
employed under a collective bargaining agreement ("CBA"), that these employees are exempt from
the overtime provisions of the California Wage Orders in that under this CBA, they receive at
least $1 an hour in excess of the state minimum wage and premium pay for overtime work, that there
is a well established practice under the CBA with respect to the issue of compensability for
uniform changing time, and that under the principles enunciated by the United States Supreme
Court in Livadas v. Bradshaw (1994) 114 S.Ct. 2068, it would be inappropriate for the Division to
render an opinion regarding the parties' obligations under this CBA.² In short, the employer's
position is that "the obligations to compensate employees for working time derive entirely from
the collective bargaining agreement and the well-established practices maintained pursuant to that
agreement."

In its Livadas decision, the Supreme Court held that the Division has jurisdiction over claims
that have an independent state law basis, notwithstanding the existence of a CBA with an
arbitration clause. On the other hand, claims that are solely founded upon the CBA, that do not
arise under state law, are outside the jurisdiction of the Division. The central inquiry under
Livadas, therefore, is whether the claim being asserted is founded upon state law or upon the CBA.

Here, the question of what does or does not constitute "hours worked" is a function of state law.
"Hours worked" is defined in the IWC Orders as "the time during which an employee is subject to
the control of an employer, and includes all the time the employee is suffered or permitted to
work, whether or not required to do so."³ Of course, there are certain state laws that contain
explicit and narrowly drawn opt-out provisions which allow the parties to a CBA to establish a
different standard than that set out in the state law. See Livadas v. Bradshaw, supra, 114 S.Ct at
2082; NBC v. Bradshaw (9th Cir. 1995) 70 F.3d 69; and Rawson v. Tosco Refining Co. (1997) 57
Cal.App.4th 1520 [upholding the validity of the overtime opt-out provisions in the IWC Orders].

But there is no opt-out language in the definition of "hours worked." Thus, all activities that
constitute "hours worked," within the meaning of the IWC orders, must be counted as time worked
for compensation purposes, regardless of any contrary provisions or practices pursuant to a CBA.
The question before the Division is whether the various activities related to changing into and
out of required uniforms constitutes "hours worked." The Division is not being asked for its
opinion, nor are we giving an opinion, as to whether such activities are compensable under the
applicable CBA, as that question is both outside the Division's jurisdiction and not relevant to a
determination of this employer's obligations under state law.

At the very least, the IWC Orders require payment of not less than the state minimum wage for "all
hours worked."⁴ Here too, there is no opt-out from the minimum wage. In the words of the U.S.
Supreme Court, "FLSA rights take precedence over conflicting provisions in a collectively
bargained compensation agreement." Barrentine v. Arkansas-Best Freight System, Inc. (1981) 101
S.Ct. 1437, 1445. The FLSA embodies "a policy of guaranteeing compensation for all work or
employment engaged in by employees covered by the Act. Any custom or contract falling short of
that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be
utilized to deprive employees of their statutory rights." Ibid. The IWC orders and California's
minimum wage law are founded upon this same policy.

The fact that the employees in question are covered by a CBA that contains overtime provisions
that fall within the opt-out provisions of the IWC Order is of no consequence with respect to the
determination of whether the activities related to changing into and out of required uniforms
constitute "hours worked" so as to be compensable. If all hours worked, taken together, exceed the
maximum number of non-overtime hours, then the employee would be entitled to overtime compensation
for all overtime hours worked. These overtime hours must either be compensated at the rate
required under the IWC order, or, if indeed the CBA's overtime provisions comport with the IWC's
opt-out language, at the rate established by the CBA for such overtime work.

With these 'Livadas issues' out of the way, we turn to the question that prompted this opinion
letter, namely, whether time spent changing into or out of uniforms, waiting to pick up or return
these uniforms, and walking to or from the location where the uniforms are picked up or returned
constitute "hours worked" within the meaning of the Industrial Welfare Commission orders. This is
not a new issue for the Division. Attached hereto please find a copy of an Opinion Letter authored
by former Chief Counsel H. Thomas Cadell, Jr., dated February 3, 1994, on the issue of compensable
time. The analysis and conclusions reached in that letter accurately set forth the Division's
enforcement position on this subject. Mr. Cadell's letter is particularly instructive on the
differences between federal and state law with respect to the definition of "hours worked."⁵

Under the IWC's definition of "hours worked", compensable time includes all time the employee is
suffered or permitted to work, whether or not required to do so, and any other time the employee
is subject to the control of the employer. In contrast to the federal test, it is only necessary
that an employee be "subject to the control of an employer" to be entitled to compensation.
Clearly, the time spent performing the above-described activities is time during which the
employees are subject to their employer's control. The employees walk to and from the central
wardrobe facility, wait on line, pick up and return their uniforms, and change into and out of
those uniforms because they are directed to do so by their employer. Moreover, all of these
activities are compelled by the necessities of the employer's business, and are performed
primarily, if not exclusively, for the benefit of the employer. Consequently, all time spent
performing such activities constitutes "hours worked" within the meaning of the IWC orders.

Thank you for your interest in California wage and hour law. Please feel free to contact this
office with any other questions.

Sincerely,

Miles E. Locker
Chief Counsel

cc: Jose Millan
Tom Grogan
Greg Rupp
Nance Steffen
Richard J. Simmons