In a nearly unanimous decision on January 27, 2014, the United States Supreme Court upheld a lower court ruling that the “donning-and-doffing” of protective gear constituted “changing clothes” under the Fair Labor Standards Act (“FLSA”), and therefore employees could negotiate away the right to compensation for such activities as part of a collective-bargaining agreement.   The decision in Sandifer, et al. v. United States Steel Corp., will primarily impact employers with collective-bargaining agreements (“CBA”), but some commentary within the opinion also may impact employers without a CBA.    

Since its enactment in 1938, the FLSA required employers to pay each employee for all hours worked.  Much litigation has arisen over what constitutes “work.”  Early opinions interpreting the FLSA included certain “preliminary activities,” such as “putting on aprons and overalls [and] removing shirts,” as “work” that was compensable.  In 1947, Congress passed the Portal-to-Portal Act which excluded from compensable time “activities which are preliminary to or postliminary to [the] principal activity or activities” that an employee is employed to perform.  Later, in 1949, the FLSA was again amended to exclude any time spent “changing clothes” at the beginning or ending of each workday if such time was excluded under a CBA.  Essentially, even if time “changing clothes” was compensable under certain circumstances, such compensation (or lack of compensation) could properly be determined pursuant to a CBA, rather than the FLSA.    

In Sandifer, the class action employees contended that the time spent donning-and-doffing certain required protective gear, including a flame-retardant jacket, pants, a hood, a hardhat, gloves, metatarsal boots, safety glasses, earplugs, and a respirator, did not constitute time spent “changing clothes,” and therefore could not be excluded under their CBA.  The employees argued that the items at issue were not “clothes” because they were designed and used to protect against workplace hazards and that they were not “changing” as the items were worn over other clothing.  Even though the employees had agreed in a CBA that such time was not compensable, the employees argued they were entitled to compensation under the FLSA.  As noted by the Court in Sandifer, and as is often the case in collective actions under the FLSA, given the number of employees and the frequency of the activities (twice a day for each employee) the amount of money involved in such a claim “is likely to be quite large.”   

The Court disagreed with the employees, concluding that items for the most part constituted “clothes.”  The Court noted that while “changing” could describe a “substitution” rather than garments which go over ordinary street clothes, the activities described by the employees constituted “changing clothes.”  The Court did determine that three items, safety glasses, earplugs and a respirator, did not constitute “clothes” because they are not commonly considered articles of dress.  In the absence of a CBA stating otherwise, the placement and removal of these items could be considered compensable under current Department of Labor (“DOL”) regulations.  However, the fact that these three items did not constitute “clothes” did not change the result.  The Court concluded that “on the whole” the period of time was spent “changing clothes,” and therefore the compensation could be determined by a CBA.     

Sandifer will primarily impact employers with CBAs.  If the bulk of time an employee spends donning and doffing such protective gear is spent on items that qualify as “clothing,” then compensation for the activity as a whole may be subject to a CBA.  On the other hand, if the bulk of time the employee spends donning and doffing protective gear is spent on items not considered clothing (such as the safety glasses, earplugs, and respirator at issue in Sandifer), then such time is potentially compensable and may not be bargained away in a CBA.   As to employers without CBAs, the SandiferCourt did express some reservations over the de minimus rule that has been applied in many circuits when addressing an employee’s compensable activities, and noted that current DOL regulations require that employers may not “arbitrarily fail to count as hours worked any part, however small” that an employee “is regularly required to spend on duties assigned to him.” 

If an employer requires employees to spend time donning-and-doffing protective gear, whether subject to a CBA or otherwise, the decision inSandifer may justify a re-evaluation of the compensable or non-compensable nature of such activities.