Employment – PPE – Donning and doffing

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Where plaintiffs have alleged that the defendant willfully violated the Fair Labor Standards Act and other laws by requiring them to perform unpaid work before and after their scheduled shifts, a class should be conditionally certified consisting of all current and former hourly employees who worked for defendant at any of its manufacturing facilities and who were required to don and doff personal protective equipment on-premises before and after their shifts without receiving compensation.

“In this suit, Plaintiff David Austin, on behalf of himself and a putative class, alleges that the Defendant Ken’s Foods, Inc. (‘Ken’s’) willfully violated the Fair Labor Standards Act, 29 U.S.C. §201, et seq. (‘FLSA’) and other laws by requiring Austin and all others similarly situated to perform unpaid work before and after their scheduled shifts. … Specifically, Austin and the opt-in plaintiffs (‘Plaintiffs’) allege that they and other Ken’s employees were not compensated for the time it took them to walk to and from locker rooms and dress in personal protective equipment (‘PPE’) prior to their scheduled shift start time (‘donning’), nor for the time they spent walking then undressing out of their PPE after their scheduled shift end (‘doffing’). … Before the Court is Plaintiffs’ motion to conditionally certify the proposed class under the FLSA, which would include all current and former hourly employees who worked for Ken’s Foods, Inc. at any of its four manufacturing facilities during the last three years (the ‘FLSA Collective’). …

“In its opposition brief, Ken’s relies on Smith v. Smithfield Foods, Inc., No. 2:21-cv-194, 2021 WL 6881062, *7 (E.D. Va. Dec. 21, 2021) to argue that conditional certification here is inappropriate because the class covers multiple facilities with numerous proposed class members. … Defendant’s reliance on Smith is misplaced. …

“Instead, this case is analogous to Cunha v. Avis Budget Car Rental, LLC, [221 F. Supp. 3d 178, 182 (D. Mass. 2016),] where the court granted conditional certification of a class of thirty damage managers, all employed by the same company but at differing grade levels. … In Cunha, plaintiffs were all salaried employees employed by one company and were classified as exempt from overtime under the FLSA. … The single policy plaintiffs alleged was failure to compensate overtime under FLSA and the court noted that articulation of this policy alone may have been enough to grant conditional certification. … The Cunha court was unpersuaded that the fact that the damage managers had different grades or that the essential duties of their positions varied based on location might invalidate any claim that the plaintiffs were subject to a single policy. … Instead, the court found that plaintiffs had met their burden at the notice stage by showing that the proposed class members shared the same salary classification and that their general duties and responsibilities appeared to be the same regardless of grade or location. … After applying the two-step approach, the court granted conditional certification. …

“Like in Cunha, here, Plaintiffs are all employed by one company, are all hourly employees, all hold similar positions with similar duties (manufacturing), and all allege Defendant’s failure to compensate for time spent on the same activities — donning, doffing, and walking back and forth from the locker rooms to the manufacturing floor. … As the court noted in Cunha, a unified policy of exemption from overtime pay alone could amount to enough of a factual showing for conditional certification at the notice stage. … Moreover, ‘courts will conditionally certify a collective action as long as the putative plaintiffs share similar job requirements and pay provisions.’ …

“The Court is not persuaded by Ken’s argument that conditional certification is inappropriate at this stage because the Marlborough plant is covered by a CBA while the other manufacturing facilities are not. …

“The Court finds that the allegations in the complaint, as well as the affidavits of opt-in Plaintiffs, demonstrate that Plaintiffs have met their burden at the first step of the conditional certification analysis. …

“The Court finds the Plaintiffs have met their ‘fairly lenient’ burden at the notice stage. … However, the Court amends the class definition to limit it to employees who were actually subject to the policy of unpaid donning and doffing during the statutory limitations period. Accordingly, the Court conditionally certifies the following class: ‘All current and former hourly employees who worked for Ken’s Foods, Inc. at any of its manufacturing facilities after March 6, 2021, and who were required to don and doff personal protective equipment (“PPE”) on the employer premises before and after their shift without receiving compensation.’”

Austin v. Ken’s Foods, Inc. (Lawyers Weekly No. 02-159-25) (12 pages) (Guzman, J.) (Civil No. 4:24-cv-40040-MRG) (March 21, 2025).

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