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On Monday, January 27, 2014, the United States Supreme Court unanimously ruled that a group of unionized steel workers at U.S. Steel Corporation did not need to be compensated for the time they spent "donning and doffing" safety gear before and after work. Justice Antonin Scalia wrote for the majority in Sandifer v. United States Steel Corp., Case No. 12-417 (Jan. 27, 2014), a case he described as requiring the Court to determine the meaning of the phrase "changing clothes" under section 203(o) of the Fair Labor Standards Act (FLSA). Although section 203(o) applies only to employers with collective bargaining agreements, certain aspects of the decision could have broader implications in "hours worked" cases under the FLSA.
Plaintiff Clifton Sandifer led a class-action suit representing a group of current and former employees of a U.S. Steel facility in Indiana. The Plaintiffs sought to recover backpay for time spent "donning and doffing" protective gear that U.S. Steel required employees to wear due to hazards encountered working in steel mills. Protective gear cited by the Plaintiffs included flame-retardant jackets, work gloves, leggings, "metatarsal boots" and respirators. Under the terms of the applicable collective bargaining agreement between U.S. Steel and the union, the time spent dressing and undressing was not compensable.
Section 203(o) of the FLSA provides that "any time spent in changing clothes or washing at the beginning or end of each workday" may be determined by a collective bargaining agreement. While the Sandifer Plaintiffs recognized that their collective bargaining agreement stated that dressing and undressing was noncompensible, they argued that the donning and doffing of protective safety gear does not qualify as "changing clothes" and thus must be compensated. The Supreme Court rejected this argument but left the door open to future claims where the protective gear is less like clothing and more like equipment.
To determine whether the protective gear in question was "clothes", Justice Scalia turned to his orignalist roots and examined the dictionary definition of clothing from the time Section 203(o) was passed in the late 1940s. Quoting Webster's Dictionary, Scalia stated that "clothes" are "items that are both designed and used to cover the body and are commonly regarded as articles of dress". It is important to note that the Court did not go so far as to define "clothes" as "essentially anything worn on the body—including accessories, tools, and so forth." The Court's definition of clothes "leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices."
Justice Scalia found that the items at issue in the case fell within the definition of clothes, except for items like glasses, earplugs, and respirators which are not typically considered articles of dress. The Court then examined whether the donning of items like earplugs and respirators could be considered de minimis and, thus, noncompensable. While Justice Scalia did not apply the de minimis doctrine, he ultimately concluded that the time spent putting on the clothes and other protective gear could, on the whole, be characterized as "time spent changing clothes," even though some of the items fell outside the definition of clothes. The Court concluded: "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."
Employers with unionized employees should make sure that the compensability of time spent changing clothes is covered under their collective bargaining agreement. Such employers should also assess the activities that take place during noncompensible time to confirm that a majority of this time is spent washing and changing "clothing" as defined by the Supreme Court. If most of the time spent by workers relates to donning and doffing equipment, rather than clothing, failure to compensate for this time could result in liability. Finally, we also suggest that all employers consider whether the Court's treatment of the meaning of the term de minimis under the FLSA might require any changes to time keeping procedures.