United States: Supreme Court’s Sandifer Decision Is Not Just About Changing Clothes

In Sandifer et al. v. United States Steel Corp., a unanimous Supreme Court clarified the meaning of "changing clothes" found in Section 203(o) of the Fair Labor Standards Act ("FLSA" or "Act"), holding that "changing clothes" includes putting on (donning) and taking off (doffing) protective gear. Section 203(o) of the FLSA allows employers and unions to bargain away compensability for "time spent in changing clothes...at the beginning or end of each workday."[1]

In Sandifer, the steelworker plaintiffs argued that the "clothes" referred to in the statute did not include the protective gear they were required to wear from hazards on the job and sought backpay for that time. Holding that "[T]he object of §203(o) is to permit collective bargaining over the compensability of clothes changing time .....", the Court validated the provisions in the collective bargaining agreement between United States Steel and its union where the parties "through mutually beneficial negotiations" agreed that the donning and doffing of various protective gear was not compensable.

Sandifer, however, is equally significant for all employers because the decision has much to say, however cryptic, regarding the de minimis standard in the context of compensable time, and also includes enigmatic comments, potentially favorable to employers, in connection with the heretofore narrow construction applied to exemptions from overtime under the Act.


The District Court held that the donning and doffing of protective gear constituted "changing clothes" under Section 203(o) of the Act. It also opined that even if certain items such as a hardhat, glasses, and earplugs were not "clothes", the time spent putting them on and off was "de minimis" and not compensable. The Seventh Circuit Court of Appeals affirmed that decision.


In its analysis, the Supreme Court focused on the definition of "changing clothes" to decide whether section 203(o) applies to donning and doffing protective gear. The Court consulted the dictionary definition of "clothes" at the time section 203(o) was enacted in 1949, stating, that the meaning of "clothes" includes "items that are both designed and used to cover the body and are commonly regarded as articles of dress." The Court found the employees' protective gear, including flame-retardant pants and jackets and steel-enforced work boots, fell within this definition. At the same time, Justice Scalia pointedly wrote that "our definition does not embrace the view, adopted by some Courts of Appeals, that 'clothes' means essentially anything worn on the body – including accessories tools, and so forth". The Court then distinguished equipment and devices as outside the reach of "changing clothes" within the meaning of section 203(o).

The Court's Comments on the De Minimis Doctrine and Exemptions May Impact All Employers      

The Court also discusses whether time spent putting on the non-clothes items (glasses, earplugs and respirator) must be counted as compensable time worked. Cryptically, the Court declared:  "A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can be fairly said is all about trifles – the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs". In phraseology that is sure to be central to further litigation, the Court explained:  "[t]he question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or working'". Concluding that if the employee devoted "the vast majority of time in question" to donning and doffing equipment or other non-clothes items, the Court stated such time would not "qualify" under section 203(o), and, conversely, if the majority of time was spent donning and doffing "clothes", then the entire period would "qualify" and need not be compensated under section 203(o). In commenting upon the de minimis doctrine, the Court, in footnote 8, also critiqued what it viewed as the Labor Department's "stricter" de minimis standard than that enunciated by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). While the Court's discussion of the de minimis doctrine can be read narrowly as applying only in the context of section 203(o), an equally plausible reading is that it can be applied more broadly to non-unionized contexts as well. This is particularly true given the Court's references to Anderson, which decision more generally discusses the meaning of compensable time under section 207(a) of the Act.

Equally interesting, the Court went out of its way to comment upon the long-held view that exemptions under the FLSA "are to be narrowly construed against the employers seeking to assert them". Enigmatically, the Court stated: "[W]e need not disapprove that statement to resolve the present case" and cited to its decision in Christopher v. SmithKline Beecham Corp., where it found the narrow construction principle inapplicable. Notably, Justice Sotomayor refused to join the Court's opinion in this regard.


The Court's Sandifer decision presents the following key take-aways:

  • Donning and doffing protective gear "both designed and used to cover the body" constitutes "changing clothes" within the meaning of section 203(o) of the FLSA, whereas putting on equipment such as glasses, earplugs and a respirator is not;
  • Unions and employers may bargain-away compensability of time spent in "changing clothes" under the FLSA;
  • However, non-unionized employers cannot rely on section 203(o) of the Act and, generally, must compensate workers for putting on and taking off clothes, including protective gear, provided it is integral or indispensable to a principal activity;
  • While the Court's discussion of the de minimis standard can be interpreted as limited to the section 203(o) context exclusively, certainly, some may argue that the Court's de minimis discussion, together with its reliance on Anderson and its critique of the USDOL's interpretation of the doctrine, lays the groundwork for a new standard, and one more favorable to employers. Thus, the Court said here that the assessment of compensability should be determined on a fair characterization of the period in issue "on the whole", and in Anderson, on which Justice Scalia relies, the Court opined "[I]t is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved."
  • Finally, the Court's mystifying statement in footnote 7, that it "need not disapprove" of the long-held view that exemptions from overtime be narrowly construed against employers, opens the door ever so slightly to employers who are challenged on their exempt employee classifications.

[1] Generally, under the FLSA, in non-unionized settings, time spent changing clothes, at the start or end of a shift at the employer's worksite, is compensable provided the clothes changing is integral and indispensable to a principal activity.

Special thanks to Jenna Hayes, Associate, for her assistance in preparing this alert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions