• Finally, Some Good News For Employers?
  • February 18, 2014 | Author: Lindsey A. Coley
  • Law Firm: Gentry Locke Rakes & Moore, LLP - Roanoke Office
  • There is no question that wage and hour claims continue to be on the rise, and that collective actions, in particular, pose a significant legal and financial risk to employers. However, a recent unanimous decision by the U.S. Supreme Court will likely reduce the number of wage and hour claims filed, particularly against unionized employers who have certain provisions in their collective bargaining agreements.

    It has long been debated whether employees should be paid for time spent putting on and taking off protective gear (also referred to as "donning and doffing"). The high court has now given us some clarity on this issue, at least for unionized employers. In Standifer v. U.S. Steel Corp., No. 12-417, the U.S. Supreme Court recently held that an employer did not have to pay employees for time spent changing into and out of certain protective gear when their collective bargaining agreement did not provide for compensation for such time. There is no doubt that this decision is a significant (and long overdue) victory for unionized employers.

    Under the Fair Labor Standards Act (FLSA), employees must generally be paid for time spent putting on and taking off protective clothing if they are required by law or by the employer to change into such clothing at the work site. However, Section 3(o) of the FLSA provides that in a unionized setting, time spent "changing clothes" may be excluded from compensable time by a collective bargaining agreement or by a custom or practice of non-compensation for such activities. The U.S. Supreme Court clarified the meaning and scope of "changing clothes" in this context. The Court held that "clothes" means "items that are both designed and used to cover the body and are commonly regarded as articles of dress." Although the Court distinguished between "clothes" and "equipment and devices" that are worn (i.e, safety glasses, hard hat, ear plugs), it ultimately concluded that because the donning and doffing of such equipment and devices did not comprise the majority of the period in this case, such time was still not compensable even though these items were not considered "clothes" in the context of Section 203(o).

    Although the U.S. Supreme Court focused its attention on changing clothes in the context of Section 203(o) of the FLSA for unionized employers, there are nuances in this decision that may serve as a springing board for other courts to extend this rationale to non-union employers in the future. However, it is important to note that this decision is only applicable to unionized employers at this time. Therefore, non-unionized employers should continue to pay their employees for donning and doffing as normally such time is compensable under the FLSA.

    We strongly recommend that unionized employers examine their collective bargaining agreements, and if there is no provision regarding the compensability of time spent donning and doffing, they should consider adding specific language stating that time spent putting on and taking off protective clothing and gear is not compensable.