The U.S. Supreme Court’s January 27, 2014 decision in Sandifer v. United States Steel Corp. brings clarity to a hotly contested area of law for unionized workplaces. Under the Fair Labor Standards Act (“FLSA”), employees are generally entitled to compensation for the time it takes them to don and doff-put on and take off-required protective gear at the beginning and end of each workday, provided that the gear is integral and indispensable to the employees’ principal work activities. At the same time, FLSA Section 203(o) provides that the time employees spend “changing clothes” at the beginning and end of each workday can be treated as non-work time, and therefore non-compensable, by way of express terms of, or by custom or practice under, a bona fide collective bargaining agreement. 29 U.S.C. § 203(o). In other words, the FLSA enables unionized employers to bargain collectively not to compensate employees for the on-site time they spend changing into and out of clothes. The issue before the Supreme Court in Sandifer was whether donning and doffing protective gear constitutes “changing clothes” for purposes of the application of Section 203(o).
The employer, U.S. Steel, argued that under the terms of the operative collective bargaining agreement employees were not entitled to compensation for the time it took them to don and doff protective gear. The employees took the position that “changing clothes” does not include donning and doffing protective gear for two reasons: (1) an employee who puts on and takes off protective gear cannot be considered to have “changed” clothes; and (2) protective gear does not fall under the definition of “clothes.” The Supreme Court rejected both of the employees’ arguments.
Addressing the first issue, the Court relied on dictionaries from the era of Section 203(o)’s enactment (circa 1949) to conclude that an employee need not literally switch one article of clothing for another in order to “change” clothes. Rather, altering one’s dress by putting on an article of clothing over another still qualifies as “changing.” With that understanding of the term, the Court held that the act of donning and doffing protective gear constitutes “changing” for purposes of Section 203(o).
Addressing the employees’ second argument, the Court turned to contemporary dictionaries to define the term “clothes” as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” On that basis, the Court held that a majority of the protective gear at issue (e.g., jackets, pants, hoods, hardhats, gloves, leggings, and steel-toed boots) were “clothes” for purposes of Section 203(o). In reaching this conclusion, the Court noted that protective accessories and tools such as safety glasses, earplugs, and respirators were not considered “clothes.”
As to the question of whether employees should be compensated for the time they spent donning and doffing these non-“clothes” items, the Court took a rational, common-sense approach: “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.’ . . . [I]f 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.” In sum, even though employees may don and doff protective items that are not considered “clothes,” as long as the “vast majority” of the donning and doffing time is spent putting on and taking off protective gear that qualifies as “clothes,” then Section 203(o) applies and unionized employers can bargain to treat such time as non-compensable.
Although the Court’s common sense approach to this issue is welcome, employers must remember that the Sandifer decision, and Section 203(o), apply only to unionized workplaces. Employers that are not subject to collective bargaining agreements do not have the ability to treat otherwise compensable donning and doffing time as non-work time and thereby escape their obligations under the FLSA. Further, while Sandifer should provide unionized employers with Section 203(o) exclusions in their CBAs with a certain degree of confidence, they should be aware that not all protective gear is created equal. While certain protective gear can be considered “clothes,” protective accessories and tools are not. Section 203(o) only applies where employees spend a “vast majority” of their donning and doffing time dealing with protective gear that qualifies as “clothes.”
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