U.S. Supreme Court Clarifies Meaning of “Changing Clothes” Under FLSA

On January 27, 2014, the U.S. Supreme Court issued a unanimous opinion in Sandifer v. United States Steel Corp., which clarified what it means for an employee to be “changing clothes” under Section 3(o) of the Fair Labor Standards Act (“FLSA”). The Court’s decision will affect unionized workplaces, where employees change in and out of (or “don and doff”) protective or sanitary clothing in connection with their jobs.

What Does the Law Say?

The FLSA generally requires employers to compensate employees for time spent “donning and doffing” protective clothing that is either required by law or by the employer. However, under section 3(o) of the FLSA, time spent “changing clothes” may be excluded from compensable time per the “express terms” of a collective bargaining agreement or by a “custom or practice” of not compensating employees for such time.

What Was the Case About?

In Sandifer, unionized workers claimed that they were not compensated for time spent “donning and doffing” protective gear, which included flame-retardant jackets, pants, and hoods, hard hats, a snood, work gloves, wristlets, leggings, metatarsal boots, safety glasses, ear plugs, and a respirator. In defense, U.S. Steel claimed this gear constituted “clothes” under Section 3(o) and that time spent donning and doffing this gear was not compensable per the language of the collective bargaining agreement.

The Seventh Circuit Court of Appeals affirmed the District Court’s finding that these protective items at issue were in fact “clothes” within the meaning of Section 3(o) and that time spent donning and doffing these items was not compensable. This finding, however, conflicted with the Ninth Circuit’s decision in Alvarez v. IBP, Inc., 299 F.3d 894 (9th Cir. 2003), which found that “special protective gear” such as that donned and doffed by the workers at U.S. Steel was not “clothes” within the meaning of Section 3(o). Due to this split in authority, the Supreme Court agreed to resolve the limited question of “the meaning of the phrase “changing clothes” as it appears in the Fair Labor Standards Act….”

What Did The Supreme Court Find?

Citing the Oxford English dictionary, the Court found that “‘clothes’ denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress” and that “time spent changing clothes includes time spent altering dress.” It further noted that the definition “leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.”

The Court applied its definition to each of the disputed items worn by the employees and found all of the items were “clothes” within the meaning of Section 3(o) except for the safety glasses, earplugs, and the respirator. Regarding these three items, they were not viewed as wearable items that a person would usually wear to cover the body. That said, the Court noted that the District Court had previously found that the time spent donning and doffing safety glasses and ear plug was “minimal” and that the respirator was actually “kept and put on as need at job locations” and was therefore compensated as part of the regular workday. The Court was not “inclined” to disturb the District Court’s findings.

The Court, however, further addressed the de minimis doctrine, which is a theory that a few courts have applied to find that when employees spend only an insignificant amount of time donning or doffing, the time is not compensable. The Court noted that this doctrine “does not fit comfortably within” Section 3(o)” and that “it is most unlikely Congress meant … to convert federal judges into time-study professionals.” To redress this, the Court announced that courts should decide whether the employee spends the “vast majority” of his or her time donning or doffing clothes or non-clothes. If the vast majority of the employees’ time is spent donning and doffing “clothes” then “the entire period qualifies, and the time spent putting on and off other items [or non-clothes] need not be subtracted.” On the other hand, if the “vast majority” of the time is spent putting on and off equipment or non-clothes, then the whole time is compensable and none of the time falls within the exception contained in Section 3(o).

What Does the Decision Mean for Employers?

For unionized employers, this is a victory. The Court’s decision provides needed clarity regarding the scope of the FLSA exemption provided for in Section 3(o). Employers can more comfortably bargain over whether time spent donning and doffing “clothes” is compensable. Consequently, we recommend that all unionized employers evaluate the items worn by their unionized workers and make a determination as to whether they are “clothes” under the new definition. Furthermore, we recommend that employers revisit the language in their collective bargaining agreements to determine if updated language should be bargained-for and included. Importantly, the Court’s decision does not change an employer’s obligation to pay for donning and doffing time, unless that obligation has been modified by a collective bargaining agreement, or unless there is a practice of not compensating employees for such time.

While the decision is helpful in defining the term “clothes,” it did not provide much guidance as to how employers should determine whether an employee spends the “vast majority” of his or her time donning and doffing “clothes” or “non-clothes.” It is unclear whether, even if an employee spends the majority (51%) of his or her time donning of doffing “clothes,” as opposed to devices or other non-clothes, this would be sufficient to qualify for the exemption Section 3(o) exemption. In addition, the decision does not address the standard an employer needs to meet in order to demonstrate they have a “custom or practice” of not paying employees for time spent changing “clothes.” Further, once the “clothes” have been put on, the decision also does not provide guidance on whether time spent walking between a locker room and a work station is compensable.

The Court’s decision, does not affect non-unionized employers and does not make any changes to the obligations to pay employees for time spent “donning and doffing.”

Given these developments, now is a good time to communicate with experienced wage and hour counsel regarding strategies to avoid litigation and to ensure compliance with applicable wage and hour laws. If you have any questions, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

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