Supreme Court Unanimous: Steel Workers Were Just Changing Clothes

Darrell VanDeusen
Darrell VanDeusen

The issue of what constitutes “compensable time” under the Fair Labor Standards Act (FLSA) is, for most employers, not so difficult to figure out: you clock in, you work, you get paid.   There are, however, some occupations where things are less clear.

What if you have to put on a uniform (a police officer or fast food server)?  Well, if you can put it on at home and drive to work, you do not get paid for “doffing and donning,” as it is called.  But what if the clothing is “protective gear” or specially made just for the job you do (think an underwater diver who repairs ship hulls).  Then, the time you take to put on the gear is time for which you should be paid.  There are a lot of jobs in between.

Section 203(o) of the FLSA addresses the issue and provides that a union and an employer may agree in a collective bargaining agreement to exclude time spend doffing and donning at the beginning and ending of a work day.  Nevertheless, Section 203(o) has resulted in a lot of litigation over the years, recently over the issue of what constitutes “clothing.”

The Supreme Court has now added to the jurisprudence in the area with its unanimous decision in Sandifer v. U.S. Steel Corp., 2014 U.S. LEXIS 799 (U.S. January 27, 2014), affirming the Seventh Circuit’s holding that steel workers who were doffing and donning protective gear were just changing clothes within the meaning of Section 203(o), and therefore, the time was not compensable.  In reaching this decision, the Court directed that courts in future cases should look at the period of time taken “on the whole” to don and doff to determine whether the time is compensable.  Management lawyers have praised the Court’s “common sense” approach here, and suggest that the Sandifer decision will clear away much of the confusion surrounding this issue for the past decade or more.

In Sandifer, the union had agreed that employees would not be compensated for putting on and taking off “clothes” at the beginning and end of each work day.  In 2007, current and former employees filed a class action for overtime payments allegedly due for doffing and donning time.  The “clothes” that these employees doffed and donned included flame-retardant jacket, pants, a hood, a hardhat, a “snood,” wristlets, work gloves, leggings, steel-toed boots, safety glasses, earplugs and a respirator. The employees claimed that the protective gear was not “clothes” within the meaning of Section 203(o).

The district court and the Seventh Circuit decided that the protective gear qualified as clothing under Section 203(o).  The Supreme Court affirmed that decision.  Writing for the Court, Justice Scalia first looked at the meaning of the word “clothes” when the FLSA was amended to add Section 206(o) in 1949.  Dictionaries of the time defined clothes to include “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  And, said Justice Scalia, “[t]hat is what we hold to be the meaning of the word as used in [Section] 203(o).” Adding that “[a]lthough a statute may make a ‘departure from the natural and popular acceptation of language,’ … nothing in the text or context of [Section] 203(o) suggests anything other than the ordinary meaning of ‘clothes.’”  The Court rejected the employees’ argument that clothes should exclude protective items designed and used to keep them safe from workplace hazards.

Turning to the merits, the Court agreed that the time spent donning and doffing protective gear was not compensable because the employees were in fact “changing clothes” under Section 203(o).  The gear was clothes because the items were “designed and used to cover the body and are commonly regarded as articles of dress.”  The Court added, however, that the workers’ glasses, earplugs and respirators did not fall within the definition of “clothes.”

The Court observed that Congress did not intend Section 203(o) to “convert federal judges into time-study professionals.”  Justice Scalia noted “[t]hat 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.”

Going forward, the Court directed lower courts to inquire “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’”  When an employee “devotes a vast majority of the time in question” to donning and doffing non-clothes equipment or items, the entire period should be compensable because it would not constitute “changing clothes” under Section 203(o), even where the employee also put on or took off some clothes.  If an employee spends “the vast majority of time” donning and doffing clothes, however, “the entire period qualifies and the time spent putting on and off other items need not be subtracted.”

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