U.S. Supreme Court Tells Us What “Changing Clothes” Really Means
In a unanimous opinion delivered by Justice Scalia, the Supreme Court on Monday decided that employers and unions could agree in collective bargaining agreements to exclude the time workers spend putting on and taking off protective clothing from the work time that is subject to the minimum wage and overtime protections of the Fair Labor Standards Act (FLSA).
Under the FLSA, employees are entitled to time-and-a-half pay for each hour they work beyond forty hours in a week. But a section of the FLSA (Section 203(o)) provides that if an employer and a union agree to make “time spent in changing clothes” noncompensable under a collective bargaining agreement, that time will not count for purposes of the statute’s minimum wage and overtime provisions. 29 U.S.C. § 203(o). The sole question before the high court in Sandifer v. United States Steel Corporation was whether—and under what circumstances—time spent donning and doffing protective clothing and equipment was time spent “changing clothes” within the meaning of the statute.
Collective bargaining agreements between U.S. Steel and the United Steelworkers of America dating back to 1947 expressly state that workers are paid only for the eight-hour shift they perform at their workstations and not for time spent donning and doffing protective clothing in the locker room or traveling to and from the locker room to the workstation.
Depending on their particular jobs, U.S. Steel workers must wear a variety of different kinds of protective clothing and equipment, including hardhats, safety glasses, earplugs, respirators, “snoods” (protective hoods that cover the head and extend to the chest), flame-retardant hoods, flame-retardant jackets, flame-retardant pants, work gloves, “wristlets” (protective Kevlar sleeves that cover the lower arm and the opening of the work glove), steel-toed boots, and “leggings” (protective Kevlar sleeves that cover the lower leg and the opening of the boot). Some of the time the workers wear these items over their street clothes, but on other occasions they remove their street clothes before donning the gear.
Clifton Sandifer, joined by about 800 other workers at United States Steel plants in Illinois, Indiana, and Michigan, brought the suit against U.S. Steel seeking backpay for uncompensated time spent donning and doffing protective clothing in the locker room and traveling to and from the locker room to the workstation, arguing that it should have been counted as work time and not a time spent “changing clothes.” The district court and the Seventh Circuit rejected this argument and ruled in favor of the company.
The Supreme Court briefing and argument was a battle of definitions. Rejecting the definitions offered by both the company and the employees, the Court instead looked to what “changing clothes” meant at the time Congress enacted Section 203(o) in 1949. The workers argued that the word “changing” could only mean substituting one item for another, and thus did not apply to items worn over street clothes. The Court disagreed, finding that the word could mean either substituting or altering, so whether a worker puts clothes on over other items that are already worn or substitutes one item for another does impact whether the time can be the subject of bargaining. As for the word “clothes,” the workers argued that the definition of clothes should exclude any items designed and used to protect against workplace hazards, while the company proposed a definition that included practically anything worn on the body. The Court rejected both definitions, instead concluding that “clothes” refers to “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” After all, the Court explained, the “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 Act, and hence no need for the § 203(o) exception.”
Applying these definitions to the items donned and doffed by the steel plant workers, the Court concluded that all but two items—safety glasses and ear plugs—constituted “clothes” and that donning and doffing these items, even when street clothes are not removed entirely and replaced by a different outfit, constituted “changing” those clothes.
The Court agreed with the lower court’s finding that the time the workers spent donning and doffing the nonclothes items was de minimus. The Court was careful, however, not to endorse the application of the de minimus doctrine invoked by some circuit courts, explaining that, after all, donning and doffing cases are always about “trifles” – “the relatively insignificant period of time in which employees wash up and put on various items of clothing.” In future cases, the Court instructed lower courts to look at “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’”
Impact On Public And Private Employers Covered By The FLSA
The Court’s decision provided some much needed clarity to employers and employees covered by the FLSA regarding whether time spent putting on and taking off (or donning and doffing) protective gear is time spent “changing clothes” that may be made noncompensable by a collective bargaining agreement.
As we reported back in February when the high court agreed to decide the case, the federal circuit courts of appeal had been divided. The Ninth Circuit, which decides cases from California, has drawn different conclusions in different contexts. In 2003, the Ninth Circuit differentiated clothing from protective gear worn by industrial workers (such as sanitary aprons, liquid repelling sleeves, metal-mesh gear and Kevlar gloves) and held that time spent donning and doffing protective gear generally is compensable under the FLSA. Alvarez v. IBP, Inc., 339 F.3d 894, 904 (2003)(citations omitted). But in 2010, addressing the issue for police officers in particular, the Ninth Circuit held that the donning and doffing of protective gear is not compensable pursuant to the FLSA because officers have the option of putting on the gear at home. Bamonte v. City of Mesa, 598 F.3d 1217 (2010).
In the private sector, the Supreme Court’s decision will impact the poultry processing, meat packing and basic metals industries where many suits over the issue have sprung up in recent years. And in the public sector, the decision will impact fire and police departments, as well as other government workplaces in which employees are required to wear protective gear while on duty. Going forward, there will almost certainly be more litigation in the lower courts over how to apply the new standard to different industries and contexts, with employees continuing to argue that their particular protective gear does not meet the Court’s newly announced definition of “clothes.”