Why it matters: In a unanimous decision – save for a single footnote – the U.S. Supreme Court held that the time spent donning and doffing protective gear, including items of clothing, was not compensable pursuant to a provision of the Fair Labor Standards Act (FLSA) allowing parties to collectively bargain over time spent “changing clothes.” Although workers can receive compensation for the time spent changing or “washing up” if the need to do so is an integral part of their principal activity, Section 203(o) of the FLSA established an exemption. Pursuant to the statute, whether or not employees can be paid for the time spent “changing clothes or washing at the beginning or end of each workday” can be negotiated away. Although the steelworkers in the case before the Supreme Court argued that protective gear did not constitute “clothes” and that simply putting the gear on over clothes did not amount to “changing,” the justices disagreed. The holding in Sandifer v. U.S. Steel affirms that employers and employees may agree to designate such time as noncompensable.
A group of current and former steelworkers at United States Steel Corporation filed a collective action pursuant to the FLSA, seeking back pay for the time spent donning and doffing a total of 12 pieces of protective gear.
Because the roughly 800 workers at the Gary, Indiana, plant were required to wear all of the items – a flame-retardant jacket, pair of pants, and hood; a hard hat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator – they contended they should be compensated for the time.
One problem: the collective-bargaining agreement negotiated by the steelworkers’ union included a provision that such time was not compensable, pursuant to 29 U.S.C. § 203(o), which states:
“In determining for the purposes of [the minimum-wage and maximum-hours sections] 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.”
To evade the exemption, the workers distinguished their items as protective gear and not “clothes.” Further, they argued that most workers put the items on over their clothes, meaning that no “changing” occurred.
Writing for the Court, Justice Antonin Scalia sided with the employer.
Dictionaries from the time period § 203(o) was enacted defined “clothes” as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Adopting this ordinary meaning of the term, the Court said this definition “does not exclude, either explicitly or implicitly, items with a protective function.”
Finding “no basis for the proposition that the unmodified term ‘clothes’ somehow omits protective clothing,” the Court explained the workers’ argument “runs the risk of reducing § 203(o) to near nothingness.”
The justices also rejected the workers’ definition of “changing.”
“Although it is true that the normal meaning of ‘changing clothes’ connotes substitution, the phrase is certainly able to have a different import,” the Court said. “We think that despite the usual meaning of ‘changing clothes,’ the broader statutory context makes it plain that ‘time spent in changing clothes’ includes time spent in altering dress.”
Applying the definitions to the steelworkers’ case, the Court said nine of the items at issue qualified as “changing clothes” within the meaning of § 203(o). The remaining three – the respirator, glasses, and earplugs – did not satisfy the Court’s standard of clothes, but the justices said time spent putting them on and taking them off was still not compensable.
Importantly, the justices declined to adopt a de minimis standard for the non-clothes items. “A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles – the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs,” Justice Scalia wrote.
Declining to convert federal judges into time-study professionals, the Court instead held that courts should look at the big picture to characterize how the employee’s time was spent. “Just as one can speak of ‘spending the day skiing’ even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so also one can speak of ‘time spent changing clothes and washing’ when the vast preponderance of the period in question is devoted to those activities,” the Court said.
“The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of the time in question to putting on and taking off equipment or other non-clothes items (perhaps a diver’s suit and tank), the entire period would not qualify as ‘time spent in changing clothes’ under § 203(o), even if some clothes items were donned and doffed as well,” the Court wrote. “But if the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined that term, the entire period qualifies, and the time spent putting on and taking off other items need not be subtracted.”
Noting that the federal court found the time spent putting on the required safety glasses and earplugs was minimal, a finding affirmed by the Seventh U.S. Circuit Court of Appeals (with respirators “beyond the scope” of § 203(o)), the Court concluded that the time was therefore not compensable.
All nine justices signed onto the opinion, with the exception of Justice Sonia Sotomayor, who dissented to a single footnote discussing how to construe exemptions under the FLSA.
To read the opinion in Sandifer v. U.S. Steel Corp., click here.