On January 27, 2014, the U.S. Supreme Court held in Sandifer v. U.S. Steel Corp., No. 12-417 (Jan. 27, 2014) that time spent by employees donning and doffing certain protective equipment was not compensable under the Fair Labor Standards Act (“FLSA”) because the activity constituted “changing clothes” and was expressly not compensable under the parties’ collective bargaining agreement (“CBA”).
The decision, which was unanimous (with the exception of one footnote), reinforces employers’ ability to negotiate the compensability of such activities through a CBA. For non-union employers, while this ruling does not change the donning and doffing rules under the FLSA, it proposes an alternative to the “de minimis” exception (which excludes from compensation such “trifles” as “a few seconds or minutes of work”) for cases where the exception at issue “can fairly be said [to be] all about trifles.” That is, instead of measuring whether compensable donning and doffing time is “too small to count,” courts now must analyze “whether the period at issue can, on the whole, be fairly characterized” as compensable or non-compensable time.
Factual Background
Employees who worked in U.S. Steel’s Gary, Indiana plant were required to don and doff certain protective gear prior to the start of their shift. The gear included the following 12 items: a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator.
Under Section 203(o) of the FLSA, an employer and a union may agree to exclude from “working time” “any time spent in changing clothes . . . .” The CBA between U.S. Steel and the workers’ union expressly excluded the time spent donning and doffing the 12 items from compensation. Nevertheless, approximately 800 former and current employees filed suit seeking back pay for the time that they had spent donning and doffing their protective gear.
In response, U.S. Steel argued that the time was not compensable under Section 203(o). Because the CBA clearly excluded the donning and doffing as part of the workers’ daily compensation, the only question for the court was whether the donning and doffing of the 12 items constituted “changing clothes” under Section 203(o).
The district court concluded that the employee’s donning and doffing constituted “changing clothes” under Section 203(o), and the appeals court affirmed.
Legal Analysis
The Court unanimously held that the employees’ time spent donning and doffing their protective gear was not compensable because the employees were “changing clothes” within the meaning of Section 203(o) and the employer and the union were permitted to exclude this time as compensable hours worked under the parties’ CBA.
Of the 12 items, the court said the workers’ flame-retardant jackets, pants, hoods, hardhats, snoods, wristlets, work gloves, leggings and steel-toed boots are “clothes” because they are “designed and used to cover the body and are commonly regarded as articles of dress.” However, the court said the workers’ glasses, earplugs and respirators do not fall within its definition of “clothes.” These items were not, according to the Court, “articles of dress.”
As to whether the employer needed to compensate employees for donning and doffing the non-clothing items, the Court first questioned whether the doctrine of “de minimis” (which means the law does not take account of “trifles”) should be applied to Section 203(o) cases. According to the Court, the doctrine did not apply because Section 203(o) “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.”
The Court concluded that Congress did not intend Section 203(o) to “convert federal judges into time-study professionals.” Thus, in order to determine whether time spent donning and doffing non-clothing should also be excluded, the “rule” is: “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes’ . . . .” . Where an employee “devotes a vast majority of the time in question” to donning and doffing non-clothes equipment or items, the entire period would be compensable because it would not constitute “changing clothes.” However, if an employee spends “the vast majority of time” donning and doffing clothes, “the entire period qualifies and the time spent putting on and off other items need not be subtracted.”
Bottom Line
Section 203(o) of the FLSA provides that an employer and union may agree to exclude from compensation time spent “changing clothes.” According to the Court, “clothes” includes a wide array of wearable items that do not serve a protective function, such as hats and pants, but does not include items better characterized as “equipment” (as opposed to “articles of dress”), such as glasses, earplugs, and respirators.
Where a workers’ time is spent donning and doffing both “clothes” and “non-clothes,” the Court adopted a “on the whole” test which examines “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes . . . .’” If so, and the CBA clearly excludes the time period from the employees’ compensable time, the time is non-compensable pursuant to Section 203(o).