On January 27, 2014, the U.S. Supreme Court issued its opinion in Sandifer v. United States Steel Corp., addressing whether employees were entitled to pay for time spent “donning” and “doffing” protective gear.  The Court held that the employees were not entitled to payment for the time because of an exception under the Fair Labor Standards Act (FLSA) that allows employers and unions to collectively bargain over whether time spent “changing clothes” is compensable.

The employees in Sandifer worked at a steel plant.  At the beginning of each day, they were required to put on, or “don,” certain protective items, including:  (i) a flame-retardant jacket, pair of pants, and hood; (ii) a hardhat; (iii) a “snood” (i.e., a hood that covers the neck and upper shoulder area); (iv) wristlets; (v) work gloves; (vi) leggings; (vii) metatarsal boots; (viii) safety glasses; (ix) earplugs; and (x) a respirator.  At the end of the day, the employees were required to take off, or “doff,” all of these items.

In Sandifer, there was no dispute that the employees’ time spent donning and doffing the above-listed protective items would ordinarily be compensable work hours under the FLSA.  However, the Court held that the time was not compensable under 29 U.S.C. § 203(o), a provision of the FLSA which states that:

In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 U.S.C. § 203(o).  In other words, notwithstanding the general principles of the FLSA, employers who have employees subject to a collective bargaining agreement may bargain with the union over whether time spent “changing clothes” must be paid or not.  This exception is not available to employers with non-unionized employees.

In applying § 203(o) in Sandifer, the Supreme Court held that whether time is spent “changing clothes” must be determined by asking “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’”  As a result, even though the Court concluded that safety glasses, earplugs, and a respirator did not fit within the ordinary definition of “clothes,” the time the employees spent donning and doffing those particular items were covered by § 203(o) because, on the whole, that time was devoted “changing clothes.”

Takeaway:  The Supreme Court’s decision in Sandifer reaffirms the ability of unionized employers to take advantage of 29 U.S.C. § 203(o) for time periods that, on the whole, can be characterized as “changing clothes or washing.”  But § 203(o) is not available for employers with non-unionized workforces, who must continue to apply the general principles of the FLSA to determine whether donning and doffing time requires payment.