On January 27, 2014, in Sandifer v. United States Steel Corp., the U.S. Supreme Court held that the Fair Labor Standards Act (FLSA) did not require a unionized employer to pay its workers for time spent donning and doffing protective gear. Interpreting Section 203(o) of the FLSA, which provides that a collective bargaining agreement (“CBA”) can exclude from hours worked any time spent “changing clothes” at the beginning or end of each workday, the Court held that “changing clothes” included any time spent donning and doffing protective gear.

Relying on dictionaries from the time Section 203 was enacted, the Court stated that “clothes” refers to “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Applying this definition, of the twelve clothing items presented to the Court, it held that three of them—safety glasses, earplugs, and a respirator—are not “clothes.” But because the vast majority of the workers’ donning and doffing time did not involve these non-clothes items, they could not be compensated for that time.

The decision’s application is limited to union employers. The Supreme Court stated that if not for Section 203(o), which only applies when there is a CBA, the donning and doffing time would otherwise be compensable under the FLSA.

ACTION ITEM

Employers with non-unionized workforces should analyze their payment practices under donning and doffing rules that apply outside of Section 203(o).

Generally, where employees are required to change clothes on the employer’s premises (by law or by rules of the employer), donning and doffing time is considered “integral and indispensable” to their principal work activities, and is compensable.

Employers should be aware that when donning and doffing time is compensable, travel time from the changing rooms to the work areas is also compensable.  Employers with unionized workforces should consider excluding payment for donning and doffing time in collective bargaining negotiations.