A U.S. Supreme Court decision may well have put to rest the highly litigious issue of whether or not workers are entitled to payment for time spent putting on and taking off personal protective equipment (PPE).

Under the Fair Labor Standards Act (FLSA), time spent changing clothes or washing at the beginning or end of each workday is excluded from compensable time if it is treated as non-work time under a collective bargaining agreement. The High Court, Sandifer v. U.S. Steel Corp., unanimously interpreted that language, drawn from Section 203(o) of the FLSA, as indicating compensation is not warranted for most PPE.

To arrive at that conclusion required the Court to interpret what Congress meant by the phrase “changing clothes.” Workers from a Gary, Indiana, steel plant, seeking back pay from their employer, claimed “changing” could mean only substituting one item for another. Since “changing” is not involved because PPE is put on over street clothes, the  time to do so is compensable, they contended. “Clothes,” they argued, should exclude any items designed and used to protect against workplace hazards. The employer claimed the time was not compensable under its collective bargaining agreement with the workers’ union.

Examining Congress’ intent, the High Court disagreed with the workers, saying that in 1949, when the language was adopted, “changing” could mean either substituting or altering. As a result, whether a worker puts clothes on over other items that are already worn or substitutes one item for another should not affect whether the time spent can be the subject of collective bargaining, and thus the possible exclusion from compensable time, the Court said. As for “clothes,” dictionaries from that time indicate the term was to be applied to items designed and used to cover the body and commonly were regarded as items of dress.  Thus, time donning or doffing the protective equipment referenced by the workers fell squarely within the Section 203(o) provision and, pursuant to the parties’ collectively bargained exclusion, thus was not compensable, the Court concluded.

The workers had cited 12 items they were required to put on for work. The Court said nine clearly fit the definition of “clothes”: a flame retardant jacket, pants, hood, hardhat, snood (type of hood), wristlets, work gloves, leggings and steel-toed boots. However, the last three—safety glasses, earplugs and respirator—did not. For these three, the Court said, the question was whether the minimal time devoted to putting them on and taking them off should be deducted from the non-compensable time. Some courts, applying a de minimis principle, have said this time is not compensable because the time involved is so trivial. But the Supreme Court said that was not the proper test. Instead, courts should look at the total amount of time involved and what was done during the bulk of it. If most of the time was spent donning and doffing clothes, then Section 203(o) applies. However, if the vast majority of the time was spent with equipment and non-clothes items, such as a diver’s suit and tank, then the entire period  would not qualify under the provision, even if some of the time involved workers’ clothing.

This decision likely will affect the poultry processing, meat packing and basic metals industries, as well as others, which have faced lawsuits over the issue in recent years.