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Do Employers Have To Pay Unionized Workers For Time Spent Donning and Doffing Safety Gear? Supreme Court Says No.

Posted in Employment, U.S. Supreme Court

In recent years, one of the hottest types of collective actions against employers under the Fair Labor Standards Act (“FLSA”) is what is commonly called a “donning and doffing claim”—a lawsuit for unpaid wages for time employees spent changing clothes for work, such as putting on uniforms, safety gear, and the like. In a recent decision, Sandifer v. United States Steel Corp. (pdf), No. 12-417, the Supreme Court unanimously clarified the rules for these collective actions.

One of the major fights in donning and doffing suits is over the meaning of a key provision of the FLSA that exempts employers from having to compensate employees for off-the-clock “time spent in changing clothes … at the beginning or end of each workday” (29 U.S.C. § 203(o)) if a collective bargaining agreement so provides. Many agreements do exactly that.

Nonetheless, parties have litigated for years over what activities are exempt under Section 203(o). The plaintiffs’ bar typically takes a very narrow view of what constitutes “changing clothes” under the statute. The Court’s decision today takes a far more practical view of the statute. Sandifer makes clear that time spent donning or doffing protective gear that is (1) designed and used to cover the body and (2) commonly regarded as an article of dress—including hard hats, protective jackets, and protective coverings for the arms and legs—is exempt if the employees’ collective bargaining agreement so provides. In addition, minimal time spent putting on or removing other protective gear (such as safety glasses and earplugs) during this time is likewise exempt. Sandifer is therefore likely to reduce the number of circumstances that would allow plaintiffs to succeed in bringing donning-and-doffing lawsuits under the FLSA.

We provide more details about the decision in Sandifer after the jump.
The plaintiffs in Sandifer argued that time spent donning and doffing safety equipment, including fire-retardant jackets and pants, steel-toed boots, goggles, ear plugs, hard hats, a flame-retardant head covering (a “snood”), and a flame-retardant “wristlet” (which covers the forearm), was compensable under section 203(o), despite the fact that the applicable collective bargaining agreement provides that time for changing clothes is not compensable. The district court held that most of the protective equipment constituted “clothes” under section 203(o) and that the remainder was de minimis, so that the time was not compensable. The Seventh Circuit affirmed.

In an opinion by Justice Scalia that was unanimous except as to a single footnote, the Court held that “clothes,” for purposes of the FLSA, means “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court noted that its definition excludes many accessories and tools that are not designed and used to cover the body or normally regarded as articles of dress—a departure from the position embraced by some courts of appeals.
The Court further held that “changing,” for purposes of the FLSA, includes all time spent in altering dress, whether or not protective clothes are substituted for or supplemental to a worker’s ordinary dress. An alternative definition requiring substitution of clothing, the Court concluded, would risk inconsistent application based on purely personal choices of workers regarding street clothes. Such an approach would risk allowing workers to opt into or out of section 203(o) coverage at random or at will.

The Court determined that all items worn by the petitioners constituted “clothes,” with the exception of safety glasses, ear plugs, and respirators. While it rejected the applicability of a de minimis doctrine in this context, the Court concluded that when the vast majority of time is spent donning and doffing clothes, the entire period qualifies as time spent “changing clothes,” even if workers must also spend a small amount of time putting on other protective equipment.

Justice Sotomayor joined all of the opinion but a single footnote, and did not file a concurring opinion. The footnote noted that, while exemptions from the FLSA are to be narrowly construed against employers, the narrow-construction principle is limited to provisions appearing in 29 U.S.C. § 213, entitled “Exemptions,” and does not apply to provisions appearing in section 203, entitled “Definitions.”

Editors’ Note: We have adapted this blog post from a decision alert issued today by members of our firm’s Supreme Court & Appellate practice.