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DONOVAN v. K F C SERVS.

August 31, 1982

RAYMOND J. DONOVAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, and UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiffs,
v.
K F C SERVICES, INC., d/b/a KENTUCKY FRIED CHICKEN, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

 NEAHER, District Judge.

 The complaint in this action was filed by the Department of Labor and charged defendant ("KFC") with violations of the minimum wage and maximum hour provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 206, 207 ("FLSA"), and of the Equal Pay Act amendments thereto, 29 U.S.C. § 206(d) (1)-(4). KFC and the Department of Labor settled the minimum wage and maximum hour claims but not the Equal Pay Act claim, which remained contested after responsibility for its enforcement had passed to the Equal Employment Opportunity Commission ("EEOC"). *fn1" KFC has now moved for judgment on the pleadings, F.R.Civ.P. 12(c). Because matters outside the pleadings have been submitted and considered, the motion has been treated by the Court and the parties as one for summary judgment.

 The substantive issue under the equal pay provisions is whether KFC has

 
"discriminate[d] . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which [it paid] wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." 29 U.S.C. § 206(d) (1).

 KFC is engaged in the business of selling prepared food to the public. It is undisputed that KFC paid the employees here involved equal amounts of cash as wages. The EEOC claim of unequal pay in violation of the Equal Pay Act arises solely from the fact that KFC required its employees to wear uniforms at work. Counter-service employees, who allegedly were chiefly females, were provided with several pants suit type uniforms by KFC which each employee was responsible for cleaning. Kitchen workers, who were chiefly males, were required to wear white linen uniforms provided by an outside company under contract with KFC and cleaned regularly by that company under its contract.

 Emphasizing as evident disparity that male kitchen workers did not spend any of their pay to clean their uniforms while female counter-service employees did, EEOC argues that the net result was a lower rate of pay to the latter. On the employees' behalf, therefore, EEOC seeks recovery of additional amounts to equalize the claimed past pay differential, even though KFC during the Wage and Hour Division's investigation discontinued the former linen uniforms and laundry service for kitchen employees and provided them with shirts styled like the pants suits, which they then became responsible for cleaning. This change according to EEOC assertedly violated the "no equalization downward" provision of 29 U.S.C. § 206(d) (1).

 The narrow issue for determination is whether the clean uniforms provided KFC's kitchen workers under the former contract with the company constituted "wages" within the meaning of 29 U.S.C. § 206(d) (1). For the reasons that follow, the Court holds that they did not, and that the present claim must be dismissed as wholly without merit.

 The FLSA contains the following definition of "wages":

 
"Wages paid to any employee includes the reasonable cost, determined by the Administrator [of the Wage and Hour Division], to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees." 29 U.S.C. § 203(m).

 There is no indication in the statute that this definition does not apply to "wages" where the equal pay provisions employ that term. Indeed, the legislative history discloses a congressional intent that the definitions and interpretations previously developed under the FLSA should be carried forward to "apply" under the Equal Pay Act. H.R. Rep. No. 309, 88th Cong., 1st Sess. (1963) (Supplemental Views, Item 5), reprinted in [1963] U.S. Code, Cong. & Admin. News 687, 690. Furthermore, prior to the executive reorganization referred to supra, the Labor Department's Wage and Hour Administrator expressed such a view in his interpretive bulletin under the Act, 29 C.F.R. § 800.110 (1979), which the Court of Appeals recently endorsed in Laffey v. Northwest Airlines, Inc., 206 U.S. App. D.C. 173, 642 F.2d 578, 587 & n.70 (D.C. Cir. 1980) (Laffey II), by modifying its prior interpretation of "wages" under the Equal Pay Act.

 Assuming that the clean uniform service KFC provided to its kitchen workers could be considered a "facility" within § 203(m), it must nonetheless be recognized that the statutory term "wages" hardly presents the Court with a clean slate. The Administrator has issued detailed interpretive bulletins which discuss what, besides cash and checks, may be considered "wages" in the three FLSA contexts where determining an employee's wage or wage rate is critical: minimum wage (Part 531); overtime pay (Part 778); and equal pay (Part 800). Such bulletins have long been accorded deference in the courts, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944); Laffey v. Northwest Airlines, supra; Usery v. Columbia University, 568 F.2d 953, 959 & n.9 (2d Cir. 1977); and it is no surprise that the parties have closely disputed the significance of various provisions to show that the Administrator's interpretations permit, if not compel, the result each seeks.

 Essentially KFC contends that the provisions concerning "wages" in the minimum wage bulletin, Part 531, mean that the cost to it of providing laundered uniforms to its kitchen workers may not be considered part of those employees' wages for equal pay purposes. It urges that 29 C.F.R. § 800.112 "expressly incorporates [the] definitions and interpretations [of the Part 531 bulletin] into the section 6(d) [equal pay] regulatory scheme." Def. Reply Memo at 9. In that bulletin, which contains provisions for determining when a "facility" may be included in an employee's wages for the purposes of complying with the minimum wage requirements of § 6, the Administrator has declared that

 
"the cost of furnishing 'facilities' found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be ...

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