Earlier this year, we commented [here] that the Supreme Court agreed to review the Seventh Circuit’s decision in Sandifer v. U.S. Steel rejecting claims by 800 factory workers that they are owed wages for time spent before and after their shifts in a locker room changing into and out of their job-required protective gear. The Supreme Court in this case will decide “[w]hat constitutes ‘changing clothes’ within the meaning of Section 203(o).” In earlier blogs [here and here], we discussed the contradictions between the plain language of Section 203(o) of the FLSA -- which allows parties to specify in collective bargaining agreements that time spent “changing clothes” is not compensable -- and various DOL interpretations, including its current view that protective gear is excluded from the definition of “clothes.” The AFL-CIO and the United Food and Commercial Workers International Union recently filed an amicus brief [here] with the Supreme Court siding with the DOL and arguing that the Seventh Circuit’s decision should be reversed.
According to the unions, the Seventh Circuit incorrectly decided that the safety equipment at issue -- including work gloves, steel-toed work boots, and a protective item covering the employees’ head and neck -- were “clothes” within the meaning of Section 203(o). Instead, the unions argue that when Section 203(o) was added to the FLSA in 1949, the phrase “changing clothes” had a well-established meaning under National War Labor Board decisions involving the baking and meat-packing industries that did not include protective gear or safety equipment.
In particular, the unions claim the NWLB considered that time spent changing from street clothes to uniforms was distinct from time spent preparing safety and protective devices. For instance, the amicus brief cites a 1954 decision by the NWLB ruling that time spent preparing “tools and working equipment” was compensable, and including “metal guards, and other protective and safety equipment” within the definition of such “tools.” Other NWLB decisions explained that “safety equipment” included items like mesh gloves, writs guards, knife guards, leather aprons, helmets and goggles. According to the unions, the NWLB considered those activities to be different from merely changing one’s clothing because it “is an activity which is an integral part of a man’s work.” By excluding from working time “any time spent changing clothes,” the unions argue, Congress intended to adopt this distinction and the contemporary meaning of “changing clothes,” and to require payment for time spent donning and doffing protective gear.
Although there is currently a split of authority on whether time spent donning and doffing safety equipment is compensable, there are no reported cases that rely on the National War Labor Board decisions to decide the issue. The employees here did not raise this issue in their petition for certiorari. Because the FLSA does not contain a definition of the term “clothes,” however, there is a chance that the Supreme Court could consider the NWLB opinions when it hands down its final decision (which is expected in 2014). Until then, employers should take steps to reduce potential liability from donning and doffing claims, including consulting with legal counsel regarding the state of the law in different jurisdictions and, if appropriate, rearranging schedules to allow employees to change into and out of their protective gear during their normal shifts. In addition, because it is not always clear what personal protective clothing or equipment is required by OSHA regulations, employers may want to consider any FLSA ramifications before accepting an OSHA citation regarding safety gear.