Early this year, in Sandifer et al. v. United States Steel Corp. (Jan. 27, 2014), the Supreme Court provided guidance on the meaning of "changing clothes" as used in Section 3(o) of the Fair Labor Standards Act (FLSA) to describe permissible non-compensable time. Section 203(o) excludes from a worker's compensable time any time spent "changing clothes" if excluded under a collective bargaining agreement, expressly or in practice. Citing to the definitions of "changing" and "clothes" when Section 203(o) was enacted, the Court held that Section 203(o) was intended to exclude "items that are integral to job performance," regardless of whether clothes or safety gear. As for the meaning of "changing," the Court stated it was immaterial that the clothes were put on over the worker's regular attire, holding "time spent in changing clothes [under Section(o)] includes time spent in altering dress."

While the Court determined that only nine of the twelve items in question qualified as "clothes," it nevertheless held that the donning and doffing of all the items qualified under Section 203(o) as "changing clothes," and therefore could be excluded from compensable time under the CBA. In reaching its holding, the Court rejected the use of the de minimis doctrine as a benchmark for whether the time is compensable. Instead, the Supreme Court stated that "[t]he question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing'."

For unionized workforces, the Supreme Court's decision in Sandiferprovides more flexibility for non-payment for time spent donning and doffing clothes if permitted by the CBA, expressly or in practice.

Late last year, the Seventh Circuit Court of Appeals addressed donning and doffing time, holding that the potentially harmful health effects of chemical exposure could render showering and changing clothes compensable work time. In DeKeyser v. Thyssenkrupp Waupaca, iron foundry employees were encouraged, but not required, to change clothes and shower while off the clock before and after their shifts, and were not paid for the time. The district court granted summary judgment, concluding that “the fact that OSHA has promulgated a standard for [hazardous material] exposure that does not mandate changing clothes and showering after work requires the conclusion that such activities are not required by the nature of the work.”

Under Department of Labor regulations and decisions of other appellate courts, off-the-clock time is compensable under three scenarios: if such activities are (1) required by law; (2) required by the employer; or (3) required by the "nature of the work." In this case, while neither OSHA regulations nor the employer required clothes changing or showering, the Seventh Circuit held that these facts were not dispositive and that the unique "nature of the work" could still require showering. On this point, the court held that more discovery was required, such as the health impacts of the workers' duties and the reasons why precautions such as showering and changing clothes may be necessary. Accordingly, the Seventh Circuit reversed the district court's order granting summary judgment and remanded the case to the district court to consider these issues.

Planning Tip: Off the clock work is always risky, especially with respect to donning and doffing issues. As a rule of thumb, if a non-union employer requires (or strongly suggests) employees to do something before or after a shift, the employer should consider whether to pay for such time. Beware - the test is not always the same! Circuit courts apply differing standards to determine whether an activity is compensable. In addition, the determination of whether the work is or is not sufficiently required by the employee's job duties is typically fraught with factual issues, making summary judgment difficult.