United States: U.S. Supreme Court Rules On Meaning Of "Changing Clothes" Under FLSA's Section 203(o) Exemption

The Supreme Court's decision impacts employers with unionized workforces and, in particular, brings clarity to which donning and doffing activities are bargainable under the FLSA's Section 203(o) exemption.

On January 27, 2014, in Sandifer v. U.S. Steel Corp., the U.S. Supreme Court issued a unanimous ruling interpreting the meaning of "changing clothes" under Section 203(o) of the Fair Labor Standards Act (FLSA) with respect to certain unionized workforces and holding that the respondent-employer was not required to compensate union employees for time spent donning and doffing their protective gear because based on their collective bargaining agreement, their donning and doffing activities qualified as "changing clothes" for purposes of Section 203(o).

Section 203(o) allows parties to decide, as part of a collective bargaining agreement, that "time spent in changing clothes ... at the beginning or end of each workday" is non-compensable. The ruling therefore impacts employers with unionized workforces that have uniform or other dress requirements.

Background

The petitioners in this case, Clifton Sandifer and others, originally filed suit in the District Court for the Northern District of Indiana on behalf of a purported class of approximately 800 former and current steelworkers in the respondent's Gary, Indiana, steel plant.

The suit, filed as a putative collective action under Section 216(b) of the FLSA, sought backpay for time spent donning and doffing various pieces of protective gear, specifically: a flame-retardant jacket, pair of pants and hood; a hardhat; a "snood"; "wristlets"; work gloves; leggings; "metatarsal" boots; safety glasses; earplugs; and a respirator. Normally, the time spent donning and doffing these items would be compensable under the FLSA if "integral and indispensable" to a principal work activity. Here, however, the respondent's collective bargaining agreement with the petitioners' union specifically provided that this time was non-compensable.

The District Court granted summary judgment to the respondent in pertinent part, holding that donning and doffing the protective gear at issue constituted "changing clothes" within the meaning of Section 203(o) and, as such, the time spent engaged in those activities was non-compensable. The District Court assumed that even if certain items, such as earplugs, were not "clothes" within the meaning of Section 203(o), the time spent donning and doffing those items was "de minimis" and therefore "non-compensable." The U.S. Court of Appeals for the Seventh Circuit affirmed the District Court's decision.

Supreme Court Decision

The Supreme Court's decision relies on dictionary definitions from the era of Section 203(o)'s enactment to conclude that "'clothes' denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress" and that "time spent in changing clothes includes time spent in altering dress." The Court noted that its definition of "clothes" "leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices."

The Court rejected the respondent's contention that "'clothes' encompasses the entire outfit that one puts on to be ready for work," stating that "Congress could have declared bargainable under § 203(o) 'time spent in changing outfits,' or 'time spent in putting on and off all the items needed for work,'" but "[f]or better or worse, it used the narrower word 'clothes.'"

Applying its interpretation of "clothes" in the Sandifer case, the Supreme Court then concluded that only three of the items in question (safety glasses, earplugs and respirator) are not "clothes" for purposes of Section 203(o). However, the District Court had concluded that the time spent donning and doffing safety glasses and earplugs was "minimal" and that time spent donning and doffing the respirators did not fall under Section 203(o) because they are "kept and put on as needed at job locations" and therefore part of the regular workday.

The Supreme Court was "not inclined to disturb the District Court's factual conclusion" and therefore held that the time spent donning and doffing the protective gear at issue qualified as "changing clothes" within the meaning for Section 203(o); as such, the time was non-compensable pursuant to a provision in the respondent's collective bargaining agreement with the petitioners' union. However, in dicta, the Court further noted that federal judges are not "time-study professionals" and should not be "assigned the task of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities during the period in question."

The Court noted that although some courts have applied the de minimis doctrine to enable them to declare noncompensable a few minutes spent donning or doffing non-clothes, the de minimis doctrine "does not fit comfortably within the statute at issue here ...."

Rather, the question for federal courts is whether the employee devotes the "vast majority" of his or her donning and doffing time to non-clothes items or clothes items.

If the vast majority of the time is devoted to donning and doffing clothes, the entire period qualifies as time spent "changing clothes" for purposes of Section 203(o), even if some of the items donned or doffed are non-clothes.

What This Does (And Does Not) Mean for Employers

The Supreme Court's decision impacts employers with unionized workforces. In particular, the decision brings clarity to which donning and doffing activities are bargainable under the FLSA's Section 203(o) exemption.

The decision does not, however, impact non-union employers and does not change the FLSA's donning and doffing rules for unionized employers that have not negotiated for collective bargaining agreements that exclude time spent clothes-changing and washing from compensable time (unless the employer can establish that it has had a custom or practice of not compensating employees for time spent in these activities, which was also not at issue in the Sandifer case).

For those employers not impacted by the decision, the general FLSA rules on donning and doffing activities still apply. Specifically, donning and doffing activity is compensable if it is "integral and indispensable" to a principal work activity. Also, when an employee's clothes-changing time is compensable under the FLSA, the employee's "travel time" from the locker room to the work station and vice versa is also compensable (as is time spent waiting to doff).

However, even unionized employers impacted by the Sandifer decision should be aware that, in certain jurisdictions, the "walking" and "waiting" time may still be compensable even if the clothes-changing time is not compensable by virtue of Section 203(o).

In light of the Supreme Court's decision, unionized employers may want to review their collective bargaining agreements to determine whether any of their employees' donning and doffing activities are non-compensable by virtue of Section 203(o) and, if so, whether the employees in question still have to be compensated for any walk and/or wait time. Employers whose collective bargaining agreements do not currently exclude time spent changing clothes and washing from compensable time should consider negotiating for such a provision in their next round of bargaining.

All employers, including those to whom Section 203(o) does not apply, may want to take this opportunity to ensure that their compensation policies and practices on donning and doffing are compliant with both federal and state laws. Employers should be aware that state law may not include a provision comparable to the FLSA's Section 203(o) exemption.

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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