On Monday January 27, the United States Supreme Court issued its opinion in Sandifer v. U.S. Steel Corp., concluding that the union-member plaintiffs were not owed back pay for time spent “donning and doffing” (putting on and taking off) protective gear. Sandifer provides needed clarity to an often-litigated provision of the Fair Labor Standards Act (“FLSA”) that allows employers and unions to agree that otherwise compensable time spent “changing clothes” will be unpaid.
The Supreme Court Decision
Generally, the FLSA requires employers to pay employees for time spent donning and doffing protective gear required to perform their jobs. But an exception allows employers and unions to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be paid. The collective bargaining agreement between U.S. Steel and the plaintiffs’ union contained a provision stating that employees would not be paid for time spent donning and doffing their protective gear at the beginning and end of the work day.
Despite this straightforward provision, the plaintiffs claimed they were due payment for time spent putting on and taking off their protective gear. They urged a very narrow interpretation of the phrase “changing clothes,” arguing that (1) gear that serves only a protective function was not “clothing,” and (2) putting on and taking off their protective gear was not “changing” because changing only means switching one item for another. For its part, U.S. Steel argued that “clothes” are anything worn on the body and that putting on and removing protective gear fit the definition of “changing clothes.”
The Supreme Court concluded that the plaintiffs were changing clothes, and therefore did not need to be paid under the terms of the collective bargaining agreement and the FLSA. In reaching its conclusion, the Court rejected both sides’ definition of “clothes,” and instead settled on a common sense definition: clothes are “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” It also rejected the plaintiffs’ definition of changing, instead concluding that “changing” includes altering what a person is wearing by adding or subtracting to the overall outfit. The court went on to hold that even if an employee spends a part of the time putting on and taking off non-clothes items, if he or she spends the “vast majority of [the] time” donning and doffing “clothes,” that entire time period need not be paid; whereas if the employee spends the vast majority of the time donning and doffing non-clothes items, even if some of that time is spent changing clothes, “the entire period would not qualify” for the changing clothes exception. Applying these definitions, the Court concluded that the time at issue did not need to be paid because almost all of the pieces of protective gear the plaintiffs were changing into and out of were “clothes,” and that the time putting on and taking off “non-clothes” items was minimal.
This is an important decision for unionized employers for at least two reasons. First, it gives employers a straightforward definition of “clothes.” In the past, unionized employers often had to negotiate about not only whether time spent donning and doffing would be compensated, but also what items constituted “clothing.” Sandifer eliminates the need for much of this negotiation, as it will now (for the most part) be obvious whether an item is a piece of clothing or not. Second, the decision in Sandifer will likely prevent many new lawsuits—and lead to the quicker resolution of suits already started—against union employers over whether time spent changing into and out of gear needs to be paid.
But just as Sandifer answered the important question of what “changing clothes” means, it opened the door to potential litigation in situations where employees spend time changing into both clothes and non-clothes items. The Court held that changing time needs to be considered as a whole, and that payment for such time will depend on whether the “vast majority” of the time is spent putting on or taking off clothing rather than non- clothing items. Determining how much time is spent, and how much time constitutes a “vast majority,” appear to be questions ripe for litigation that courts will now be called on to decide.