|March 19, 2014|
Previously published on March 12, 2014
In Sandifer v. United States Steel Corp., No. 12-417 (Jan. 27, 2014), a case that has been closely watched by labor attorneys, the U.S. Supreme Court issued a victory for employers of unionized workers where the employer and a union representing its employees have expressly negotiated a contractual provision addressing or establishing a custom or practice of not compensating for “donning and doffing” protective gear. Section 203(o) of the FLSA permits employers to bargain over the compensability of “time spent in changing clothes or washing at the beginning or end of each workday.” In Sandifer, although the applicable collective bargaining agreement specifically provided that employees would not be compensated for such time, the Plaintiff class argued that the donning and doffing of protective safety gear was not “changing clothing” and, therefore, they should have been compensated for such time spent before and after their shifts.
Writing on behalf of the unanimous Court, Justice Antonin Scalia held that for purposes of Section 203(o) (“section 3(o)”), “clothes” means “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court found that this definition “leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices” (such as a wristwatch), but “does not exclude all objects that could conceivably be characterized as equipment.” The Supreme Court rejected the view that clothes meant anything worn on the body, including tools and accessories, and specifically singled out necklaces, knapsacks, knife holders, and tools as not qualifying as clothes. The Court rejected the employees’ argument that protective gear put on over a worker’s street clothes is not covered by section 3(o). Instead, the Court found that changing clothes includes “altering dress” in addition to donning substitute clothing. Applying these principles, the Court found the following items to be “clothes” because they are “both designed and used to cover the body and commonly regarded as articles of dress”:
(1) Flame-retardant jackets;
(2) Flame-retardant pants;
(3) Flame-retardant hoods;
(4) A hard hat;
(7) Work gloves;
(8) Leggings; and
(9) Metatarsal boots.
The Court found, however, that safety glasses, ear plugs and a respirator are not “clothes” under section 3(o).
The Court rejected the application of the “de minimus” doctrine (i.e., time is not compensable if a relatively insignificant amount of time is spent on an activity) as it applies to time spent “changing clothes.” Instead, the Court held that if the “vast majority of the time is spent donning and doffing ‘clothes’,” as defined by the Supreme Court, then “the entire period qualifies, and the time spent putting on and off other items need not be subtracted.” Conversely, if the “vast majority of the time in question” is spent putting on and off equipment or other non-clothes items, then the entire period is not covered by section 3(o).
This decision does not apply to non-unionized workforces but it sends a clear signal of where the Supreme Court is likely leaning on wage and hour issues. In response to this decision, unionized employers should examine their collective bargaining agreements and, if there is no provision regarding donning and doffing, consider whether they want to add explicit language to exclude compensation for time spent putting on and taking off protective clothing and gear. Unionized employers should also assess the activities undertaken by employees before and after their shifts in order to determine whether the majority of the time is spent donning and doffing clothing, as defined by the Court, rather than equipment, so as to ensure that they are not subject to liability for failure to properly compensate their employees.