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.

Background

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.

Ruling

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.

Implications

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.