U.S. Supreme Court to Determine the Meaning of “Changing Clothes”
The U.S. Supreme Court has agreed to hear a private sector “donning and doffing” case. In Sandifer v. United States Steel, the plaintiff steel factory employees assert that the FLSA requires they be paid for time spent changing into and out of protective gear, specifically “flame retardant pants and jacket, work gloves, metatarsal boots, a hard hat, safety glasses, ear plugs, and a snood.” (678 F.3d 590 (2012).) Section 203(o) of the FLSA (found at 29 U.S.C. § 203(o)) specifically provides that an employer is not required to compensate employees for time spent “changing clothes or washing at the beginning or end of each workday” unless required by the “express terms or by custom or practice” under a collective bargaining agreement. The issue is whether the type of protective gear at issue in the case constitutes clothing under Section 203(o). Although Sandifer does not involve police officers or other public sector workers, the Court’s decision could modify the state of the law in regards to all employees, including those in the public sector.
In Sandifer, the Seventh Circuit Court of Appeals found that donning and doffing protective equipment is the same as “changing clothes,” rather than qualifying as a “principal activity” which would constitute compensable time under the FLSA. The Circuit Courts are split on this issue, however. The Fourth Circuit, for example, has held that protective gear is distinct from clothing, and employees must be paid for time spent changing into such gear. (Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011).) Further adding to the confusion, the Department of Labor’s Wage and Hour Division has reversed its position more than once in regards to whether “protective gear” constitutes “clothing” under Section 203(o). Noting these reversals, the Tenth Circuit stated in a 2011 decision that it did “not find the agency’s current position particularly well-reasoned.” (Salazar v. Butterball, 644 F.3d 1130, 1139 (10th Cir. 2011).)
In one of a number of donning and doffing cases, the Ninth Circuit has made a clear distinction between clothing and protective gear under circumstances similar to those present in Sandifer: “donning and doffing of all protective gear [such as sanitary aprons, liquid repelling sleeves, metal-mesh gear and Kevlar gloves] is integral and indispensable to the principal activities for which the plaintiffs are employed, and generally compensable.” (Alvarez v. IBP, Inc., 339 F.3d 894, 904 (2003)(citations omitted).) Relatedly, however, in regards to police officers, the Ninth Circuit has specifically found that the donning and doffing of protective gear is not compensable pursuant to the FLSA, as officers have the option of putting it on at home. (Bamonte v. City of Mesa, 598 F.3d 1217 (2010).)
The Supreme Court’s decision in Sandifer should serve to clarify aspects of donning and doffing for employers and employees everywhere. Check back to see how the Court rules (likely in early 2014).