United States: More To Supreme Court’s Sandifer Decision Than The Definition Of "Clothes"

On January 27, the U.S. Supreme Court issued its opinion in Sandifer v. U.S. Steel Corp.,[1] unanimously holding that U.S. Steel employees could not avoid the terms of their collective-bargaining agreement, which provides that they are only compensated for time at their work stations and not for time spent donning and doffing their required protective gear. The case turned on the definition of "changing clothes" found in section 203(o) of the Fair Labor Standards Act of 1938 (FLSA).[2] The Court noted that, normally, the time spent donning and doffing such protective gear would be compensable under the FLSA as a so-called "principal activity." Section 203(o), however, permits the exclusion from "hours worked" of the "time spent in changing clothes . . . at the beginning or end of each workday" in accordance with "the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee."

Background: Portal-to-Portal Act of 1947

The Portal-to-Portal Act of 1947 was enacted as an amendment to the FLSA and was designed to clarify the law with respect to the compensability of travel and other activities before and after the scheduled workday. The Portal-to-Portal Act provides that an employer need not count as time worked for minimum wage and overtime purposes time spent "traveling to and from the actual place of performance of the principal activity or activities which such employee is to perform" or in "activities which are preliminary to or postliminary to [the] principal activity or activities [of the job]." Donning and doffing cases seeking overtime pay typically address claims by employees that their employers should have compensated them for time spent putting on and taking off protective clothing that is a prerequisite for doing their jobs. According to the U.S. Department of Labor (DOL), "[g]enerally, donning and doffing, which may include clothes changing, can be a 'principal activity' under the Portal to Portal Act." In Sandifer, the Court reaffirmed the principle that "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under" the Portal-to-Portal Act and that donning and doffing of protective equipment typically will be such a principal activity, unless it is excluded under FLSA section 203(o).[3]

What are "clothes"?

In Sandifer, the workers argued that a provision in their collective-bargaining agreement that excluded the changing of clothes from compensable time was not subject to the FLSA section 203(o) exclusion because putting on and taking off the protective gear was not the same as "changing clothes" and, therefore, section 203(o) was inapplicable. Specifically, the workers argued that the term "clothes" does not include "items designed and used to protect against workplace hazards." Instead, "clothes," according to the workers, are meant for "decency and comfort." U.S. Steel argued that "'clothes' encompasses the entire outfit that one puts on to be ready for work." The Court rejected both interpretations, looking to the "'ordinary, contemporary, common meaning'" of the term "clothes."[4] The Court noted that "[d]ictionaries from the era of §203(o)'s enactment [i.e., 1949] indicate that 'clothes' denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress."[5] Ultimately, the Court's unanimous decision hinged on a statutory textual analysis. The Court focused on the fact that an operative word in section 203(o) was "clothes" and the statute contained no exclusion for protective clothing. Absent an express exclusion, "clothes" meant clothes—nothing more, nothing less. The Court further explained that "[t]he statutory context makes clear that the 'clothes' referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the [FLSA], and hence no need for the §203(o) exception."[6] The Court also explained what would not count as clothes, stating that "[m]any accessories—necklaces and knapsacks, for instance—are not 'both designed and used to cover the body.' Nor are tools 'commonly regarded as articles of dress.'"[7] The Court addressed several specific items as set out below.

What does it mean to "change" clothes?

Having determined the definition of "clothes," the Court then turned to the meaning of "changing." The workers argued that "changing" means "substitution"—i.e., taking off an article of clothing and replacing it with another. Thus, protective gear that is placed over street clothes is not covered by section 203(o). The Court rejected this interpretation, holding instead that "'time spent in changing clothes' includes time spent in altering dress."[8]

What if an employee changes clothes and puts on equipment at the same time?

Applying the above principles to the facts at hand, the Court rejected the use of a de minimis doctrine because it "does not fit comfortably within [section 203(o)], which, it can be fairly be said, is all about trifles—the relatively insignificant periods of time in which employees wash up and put on various items of clothing."[9] Rather, 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.'"[10] In that regard, "[i]f an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items . . . 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."[11]

Implications for Employers

The Court's unanimous opinion leaves in place the ability to collectively bargain as to the start and end of the workday with respect to changing "clothes," which now includes protective garments. The Court declined to apply the de minimis doctrine in the context of donning and doffing under section 203(o) and rejected an approach that would require the per-item parsing of the minutes it takes to don or doff a piece of equipment or clothing in favor of a determination of how an employee spends the "vast majority" of the disputed time. Employers with a unionized workforce that dons and doffs clothes and/or protective equipment should consider whether those activities are compensable, whether it is economically sensible to negotiate an exclusion under section 203(o), or whether they should maintain a custom or practice under an existing bona fide collective-bargaining agreement applicable to the particular employees involved.

Although the focus in Sandifer was the meaning of "changing clothes," a close reading of the case suggests three other important points that can be derived from its reasoning.

• In language that likely will impact a variety of wage and hour off-the-clock timekeeping cases under the FLSA, the Court summarized the history of the Portal-to-Portal Act as abrogating earlier case law allowing employees to argue that they were entitled to compensation for any time "'necessarily required to be on the employer's premises'" for the employer's benefit. Rather, "preliminary" and "postliminary" activities are compensable under the FLSA only if they are an "integral and indispensable part of the principal activities for which covered workmen are employed."[12] This discussion in Sandifer strengthens the argument for employers that activities such as passing through security screening; booting up and shutting down computers; and other activities that are tangentially related, but not integral to the performance of one's job, are not compensable principal activities.
• The Court did not defer to the DOL's interpretations of section 203(o), which the Court described as having "vacillated considerably over the years."[13] The Court has recently and repeatedly made the point that, if the interpretations of a government agency such as the DOL have tended to change over time, they are not entitled to much, if any, deference.
• Finally, in a footnote that Justice Sonia Sotomayor declined to join, the Court reaffirmed that a rule of statutory construction providing that FLSA "'exemptions' . . . are to be narrowly construed against the employers seeking to assert them" does not apply to provisions appearing in FLSA section 203, titled "Definitions."[14]

[1]. No. 12-417 (U.S. Jan. 27, 2014), available here.

[2]. 29 U.S.C. § 203(o).

[3]. Sandifer, No. 12-417, slip op. at 6 (internal quotations omitted).

[4]. Id. (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)).

[5]. Id. (citing Webster's New International Dictionary of the English Language 507 (2d ed. 1950)).

[6]. Id. at 9.

[7]. Id.

[8]. Id. at 11.

[9]. Id. at 13.

[10]. Id. at 14.

[11]. Id. at 14–15.

[12]. Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

[13]. Sandifer, No. 12-417, slip op. at 6 n.5.

[14]. Id. at 11 n.7 (internal quotations omitted).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.