Supreme Court Holds That Donning and Doffing Protective Gear Constitutes “Changing Clothes” for Purposes of the FLSA

Today, the Supreme Court issued its opinion in Sandifer v. United States Steel Corp., No. 12-417 (U.S. Jan. 27, 2014).  The issue in Sandifer was whether time spent by union employees in donning and doffing of protective gear constituted compensable time for purposes of an overtime claim.  The Court held that donning and doffing of protective gear constituted "changing clothes" for purposes of the FLSA.  As such, the compensability of the time was a subject to collective bargaining between the employer and the union.  Because the collective bargaining agreement provided that time spent changing clothes was not compensable, the employees lost.

Section 203(o) of the FLSA provides that:

In determining for the purposes of [the minimum wage and overtime requirements] the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

In the case of the U.S. Steel plant in question, the collective bargaining agreement provided that changing clothes was not compensable time.

The employees noted that they had to spend a great deal of time donning and doffing protective gear.  The Court summarized the facts as follows:

Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear:  a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator.    At bottom, petitioners want to be paid for the time they have spent putting on and taking off those objects.  In the aggregate, the amount of time—and thus money—involved is likely to be quite large.

 The lower courts found that the donning and doffing of protective gear constituted "changing clothes."  The Supreme Court analyzed the statute at length, and agreed with the lower courts.

The Supreme Court found that nine of the twelve items of protective gear constituted "clothes" for purposes of the FLSA:

Petitioners have pointed to 12 particular items: a flame retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator. The first nine clearly fit within the interpretation of "clothes" elaborated above: they are both designed and used to cover the body and are commonly regarded as articles of dress. That proposition is obvious with respect to the jacket, pants, hood, and gloves. The hardhat is simply a type of hat. The snood is basically a hood that also covers the neck and upper shoulder area; on the ski slopes, one might call it a "balaclava." The wristlets are essentially detached shirtsleeves. The leggings look much like traditional legwarmers, but with straps. And the metatarsal boots—more commonly known as "steel-toed" boots—are just a special kind of shoe.

The remaining three items were more problematic:

The remaining three items, by contrast, do not satisfy our standard. Whereas glasses and earplugs may have a covering function, we do not believe that they are commonly regarded as articles of dress. And a respirator obviously falls short on both grounds. The question is whether the time devoted to the putting on and off of these items must be deducted from the noncompensable time. If so, federal judges must be assigned the task of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities during the period in question.

The Supreme Court declined to find that the amount of time spent donning and doffing this gear was "de minimis," but nonetheless found that it was not compensable.  The Court noted the difficulty of engaging in the fact finding that would be necessary.

That said, we nonetheless agree with the basic perception of the Courts of Appeals that it is most unlikely Congress meant §203(o) to convert federal judges into time-study professionals. That is especially so since the consequence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining.  

The Court's solution was to look at the larger purpose of the time being expended by the employees:

 The question for courts is whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not  qualify  as  “time  spent  in  changing  clothes”  under §203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the  time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.

  The Supreme Court therefore affirmed the decision of the lower courts against the employees.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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