See Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 718 (2d Cir. 2001) (“If the proper performance of [the employees’] job required the preparatory work to be completed when the first walk-in patient could potentially arrive, this time should have been counted, regardless of whether anybody specifically instructed them to arrive early.”); 29 C.F.R. 790.8(c); Wage Hour Advisory Memorandum, 2006-2, at 1. On this record, the donning, doffing, washing, sanitizing, and preparatory activities at issue in this case clearly constitute “work” under the FLSA.

Butterball Requires Workers to Wear PPE to Perform Their Job Duties Activities that workers must perform in order to perform their job duties are compensable principal work activities. 29 C.F.R. § 790.8(a). Asthe Supreme Court held in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 21 U.S. 590, 599 (1944): The extraction of ore from these mines by its very nature necessitates dangerous travel in petitioners' underground shafts in order to reach the working faces, where production actually occurs.

... Further, ‘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,’ the activity may be considered integral and indispensable to the principal activities.” Ballaris, 370 F.3d 901, 910 (quoting 29 C.F.R. § 790.8(c)) (emphasis added by Ballaris court). As it does regarding the work issue, Defendant ignores the Ballaris analysis adopted by De Asencio because it must result in a finding that donning and doffing is integral and indispensable and therefore work.5 Indeed, in the sole case in a Third Circuit district court, the 5 Defendant’s contention that Steiner is a “very narrow” exception to the general rule is not supported by any Third Circuit authority.

Fla. March 2017) (emphasis added) (quoting Integrity Staffing Sols. Inc., 135 S.Ct. at 519) (abrogated on other grounds); see also 29 C.F.R. § 790.8 (making clear that the “principal” activities referred to in the statute are activities which the employee is “employed to perform.”).

21The Regulations adopted by the DOL define “principal activities” to mean “activities which the employee is ‘employed to perform.’” 29 C.F.R. § 790.8(a). According to the DOL, activities such as “checking in and out and waiting in line to do (continued...) -53- Government concedes that these activities ordinarily constitute ‘preliminary’ or ‘postliminary’ activities excluded from compensable work time as contemplated in the Act.”

The changing of clothes may be considered integral and indispensable to an employee’s principal activities “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.” Ballaris, 370 F.3d at 910 (citing 29 C.F.R. § 790.8(c)) (emphasis in the original). Additionally, the mere fact that the donning and doffing of gear may be simple or common in a particular work environment does not mitigate against a finding that those activities are integral and indispensable.

Integrity Staffing, 135 S. Ct. 517: The Department of Labor’s regulations are consistent with this approach. See, 29 CFR §790.8(b) (2013) “The term ‘principal activities’ includes all activities which are an integral part of a principal activity”); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance.”)

Id. at 751 (quoting Department of Labor Regulation, 29 C.F.R. § 790.8(a)). In the case before me, however, there is no factual dispute about the activity of MBTA employees after the completion of Case 1:13-cv-11455-ADB Document 65 Filed 03/31/15 Page 10 of 28s : 6-cv- 2 8 - c t 9-6 il 4/10/ 7 1 f 9 -11- their final route of the day; employees are completely free to go wherever they want and they are not required to check out or return any equipment to their starting point.

Id. at 751 (quoting Department of Labor Regulation, 29 C.F.R. § 790.8(a)). In the case before me, however, there is no factual dispute about the activity of MBTA employees after the completion of Case 1:13-cv-11455-ADB Document 65 Filed 03/31/15 Page 10 of 28Case 1:16-cv-12488-ADB Document 10-6 Filed 03/31/17 Page 11 of 29 -11- their final route of the day; employees are completely free to go wherever they want and they are not required to check out or return any equipment to their starting point.

The FLSA regulations define “principal activities” as those which the employee is “employed to perform” or those integral and indispensable to a principal activity. 29 CFR § 790.8. In Alvarez, the lower courts had held that the donning and doffing of unique protective gear were principal activities under Section 4 of the Portal to Portal Act, 29 USC § 254, and were thus compensable activities.