Written by Jillian Collins
This week the Supreme Court held that time unionized workers spend putting on (donning) and taking off (doffing) personal protective gear is not compensable under the Fair Labor Standards Act. The decision comes on the heels of a recent rise in donning and doffing collective action cases and will have a significant impact on employers with unionized employees.
On behalf of a unanimous court (except as to one footnote), Justice Scalia held in Sandifer v. U.S. Steel Corp. that the time employees spent putting on safety gear was not substantially different from time they spent changing clothes, and so U.S. Steel did not need to compensate employees for such time.
Under Section 203(o) of the FLSA, employers do not need to compensate employees for off-the-clock time spent changing clothes at the beginning or end of the workday if the employees are subject to a collective bargaining agreement that provides as much.
In this case, U.S. Steel argued that their collective bargaining agreement, which provided that employees would not by compensated for time spent preparing for or concluding their workdays, exempted the time spent donning and doffing from compensation. Counsel for the putative collective action class, which included approximately 800 current and former U.S. Steel employees, argued that the protective gear, which included flame-retardant jackets, hardhats, wristlets, safety glasses, earplugs and respirators, was not clothes under the statute and that U.S. Steel was required to pay for all time spent putting on and taking off the gear.
The Court evaluated the definition of “clothes” at the time Section 203(o) was enacted and determined that “clothes” referred to items “that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court did not go as far as some Courts of Appeals, which have held that “clothes” means essentially anything worn on the body, including accessories, tools, and so forth.
In terms of the “changing” language, the Court held that the term carried two common meanings, to substitute or to alter. Thus, the Court held, the “time spent in changing clothes” includes time spent in altering dress (i.e. adding layers of clothes).
The Court held that all items worn by the workers constituted “clothes,” except safety glasses, ear plugs, and respirators. With respect to those items, the Court evaluated the applicability of the de minimis doctrine, which the Seventh Circuit Court of Appeals endorsed in the underlying decision. Under this doctrine, the Supreme Court previously had held that because split-second “absurdities” are not justified by actual working conditions, a few seconds or minutes of work beyond the scheduled working hours may be disregarded as non-compensable. In this case, the Court found that the de minimis doctrine does not fit comfortably within Section 203(o), which the Court 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.” Still, the Court avoided turning federal judges into “time-study professionals” by creating an “on the whole” standard.
In other words, if an employee spends the vast majority of time donning and doffing “clothes” as defined by the Court, then the time spent putting on and taking off other items need not be compensated. But if the vast majority of the time is spent putting on and taking off equipment or other non-“clothes” items, then the entire period is compensable.
While Section 203(o) applies only to unionized employers, even non-union employers should take notice of the Court’s discussion of the de minimis standard and its potential inapplicability to certain FLSA provisions.