Supreme Court Says “Clothes” May Include Protective Gear for FLSA Purposes

by Erica E. Flores

It’s hard to believe a case that turned on the meaning of the term “changing clothes” made it all the way to the Supreme Court.  What may be even more surprising, however, is that the Court’s opinion on the subject, issued last month, actually has important implications for employers with a unionized workforce, providing critical guidance for negotiations relating to time spent “donning and doffing” required clothing.

Clifton Sandifer is a steelworker employed by United States Steel Corp. (“US Steel”) in Gary, Indiana.  A member of the steelworkers’ union, he is subject to a collective bargaining agreement that expressly provides that US Steel does not have to pay its workers for time spent changing into and out of required safety gear at the beginning and end of the workday.  Nonetheless, in December 2007, Sandifer and others filed a collective action lawsuit against US Steel in Indiana federal court seeking back pay under the Fair Labor Standards Act for time spent doing just that.

US Steel sought summary judgment, pointing to Section 203(o) of the FLSA, which expressly excludes from the statute’s coverage “any time spent in changing clothes” if such time is not considered compensable work time under the terms of a collective bargaining agreement.  Sandifer opposed the motion, arguing that Section 203(o) did not apply because the items in question – flame-retardant jackets, pants, and hoods, a hardhat, gloves, safety glasses, and earplugs, among other things – are protective gear, not “clothes.”  Both the district court and the Seventh Court rejected Sandifer’s arguments, agreeing with US Steel that the “donning and doffing” time at issue was time spent “changing clothes” within the meaning of Section 203(o) and holding that, even if certain items were not “clothes,” the time spent putting them on and taking them off was negligible and, therefore, not compensable under the FLSA anyway.  In a recent opinion, the Supreme Court affirmed.

The Court first defined the word “clothes”  to mean “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  Applying that definition, the Court concluded that there was no statutory basis to exclude items just because they also have a protective function, noting that, since protective gear is generally the only apparel many workers are required to wear, the plaintiffs’ proposed distinction risked limiting the applicability of Section 203(o) to very few classes of workers.  The Court also rejected Sandifer’s argument that its definition of “clothes” captures everything from hair accessories to band-aids, explaining that time spent donning and doffing items that are not integral to the employee’s job performance is not compensable under the FLSA in the first place, irrespective of Section 203(o), and that, in any event, the Court’s definition of “clothes” is not so broad as to encompass non-clothes items like tools and accessories just because they are worn on the body.

As for the word “changing,” Sandifer argued that it means “substituting” one thing for another, so that a worker would not be “changing clothes” when he puts on or takes off an item worn over other articles, but the Court rejected this argument as well.  According to the Court, “changing” must also mean “altering” because, otherwise, the applicability of Section 203(o) could turn on whether an employee happened to wear layers, and the statute “should not be read to allow workers to opt into or out of its coverage at random or at will.”

Applying these definitions to the gear at issue, the Court concluded that most of the items fell comfortably within its definition of “clothes.”  The Court agreed that three items – glasses, earplugs and respirators – are not “clothes,” but rather than try to quantify time spent donning and doffing those items to see if it is so negligible that it should be disregarded (as the district court and Seventh Circuit did), the Court looked instead to the changing period as a whole.  As the Court explained, “[i]f an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items . . . the entire period would not qualify as ‘time spent in changing clothes’ under § 203(o), even if some clothes were donned and doffed as well.  But if the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined that term, the entire period qualified, and the time spent putting on and off other items need not be subtracted.”

The decision is relatively narrow, as Supreme Court decisions go, but it has important implications for labor relations.  First, it highlights the potential benefit to employers of including “donning and doffing” time in their labor contract negotiations.  Second, it lumps all changing time into a single period and requires that the compensability of that time be determined for the period as a whole, suggesting that employers should do the same in labor agreements.  Third, it ties the applicability of the all-important FLSA exclusion to whether the “vast majority” of that time period is spent changing “clothes” under the Court’s definition.  Before negotiating the subject, therefore, employers should make sure that the majority of the items they require their employees to wear are in fact “designed and used to cover the body and commonly regarded as items of dress.”  If the required items consist predominantly of tools or accessories, for example, negotiating the issue may not make sense because Section 302(o) likely will not apply.  At a minimum, employers who are engaged in or entering contract negotiations should consult their labor counsel to discuss these issues, investigate the facts, and formulate a strategy.

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