Last week, the Supreme Court decided the case of Sandifer v. United States Steel Corp., Case No. 12-417 (Jan. 27, 2014), addressing donning and doffing claims in the context of a unionized steel mill. That case not only addressed fundamental issues of how to determine whether safety gear is “clothing,” but also reflected concerns that may undermine the viability of many collective actions generally.
Much has already been written about Sandifer, even before the Supreme Court decided the case, but in a nutshell section 3(0) of the Fair Labor Standards Act permits the parties to a collective bargaining agreement to determine whether “time spent in changing clothes . . . at the beginning or end of each workday” is compensable. In Sandifer, the workers had to wear 12 pieces of protective gear while working in the plant ranging from a jacket and gloves to a hardhat, safety glasses, earplugs, and a respirator.
The Supreme Court first dealt with the issue of what constituted “clothing” and refused to draw a distinction between clothing generally and safety or protective clothing, largely adopting a common sense approach that clothing was clothing period. It also rejected arguments that since workers were placing the gear over their street clothes, they weren’t really “changing clothing.”
As an aside, if you find any of this interesting, the Historical Center of Industry and Labor, a very nice smaller museum in Youngstown, Ohio, has much of the current and historical gear on display and, at least at one time, had an area where you could actually try on the gear. You can find their web site here.
Ultimately, the Supreme Court in Sandifer concluded that most of the gear was clothing, and that it would not delve piece by piece into the changing process to ferret out potential non-clothing items such as safety glasses, ear plugs, or respirators (which were only used occasionally, and probably included in the employee’s work day anyway). Concluding that the time for such items was likely minimal, it found that the time spent putting on the gear as a whole did constitute the changing of clothing and that the employer could take advantage of the Act’s exemption.
Apropos to class or collective actions, however, the Court expressed concern over claims that might require courts to engage in a granular time analysis. First, the court noted that the statute virtually forced courts to “select among trifles” and rejected the view, akin to its decision in Wal-Mart Stores, Inc. v. Dukes, that estimates would suffice, declaring “de minimis non curat lex is not Latin for close enough for government work.” This undercuts the view taken in many collective actions that formulas or estimates might overcome distinctions within the putative collective class.
Second, the Court rejected the view that at least section 3(o) was intended “to convert federal judges into time-study professionals.” The Court drew support for its holding from the notion that adopting a common sense approach would “avoid . . . relatively inconsequential judicial involvement in a ‘morass of difficult, fact-specific determinations.’” Citing Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 218 (4th Cir. 2009).
These comments are in line with the Dukes decision’s rejection of “Trial by Formula” and the decision in last year’s Comcast decision that a class could not be maintained when individual damage computations might overcome the class-wide issues. They are particularly important in that the Court made them in the context of the FLSA. Taken together, they suggest that particular types of FLSA cases, such as off-the-clock matters, might not be suitable for collective action treatment because of the need for individual determinations as to what time employees did or did not work off the clock.
The Bottom Line: Sandiver tells us that clothing is clothing for donning and doffing purposes, but it also casts doubt on the viability of a large number of putative collective actions in which the court would be required to engage in a detailed analysis of how each employee spent all or a portion of their day.