Since the passage of the Fair Labor Standards Act (FLSA) in 1938, Congress, the Department of Labor and the courts have struggled with the issue of defining when the putting on and taking off (donning and doffing) of protective clothing and equipment in the workplace should be compensable work time. Today, as a general rule, the time spent by employees donning and doffing such clothing and equipment is treated as compensable work time when the gear is integral to the principal work activities; however, questions remained in union-represented workplaces regarding how to apply an exception in the FLSA that permitted the pay, if any, for changing “clothes” to be addressed in a collective bargaining agreement as either paid or unpaid time.
On January 27, 2014, the U.S. Supreme Court clarified this issue, holding that collectively bargained language providing that workers will not be paid for the time spent donning and doffing protective clothing is lawful and enforceable under the FLSA. Sandifer v. United States Steel Corporation, 2014 WL 273241 (Jan. 27, 2014). The Court further held that such exclusion from compensable time could also include the donning and doffing of equipment when such equipment is a minor part of the overall activity of changing clothes.
While the impact of this decision is limited to workplaces that have union-represented employees and collective bargaining agreements, this unanimous decision of the Court represents a common sense approach to this FLSA exclusion, allowing individual employers to deal with the issue through collective bargaining at their respective workplaces.
In Sandifer, the employer and the union had long-standing contract language that provided employees would not be paid for time spent donning and doffing protective clothing at the beginning and end of the workday. Such contract language was based on a 1949 amendment to the FLSA (Section 3(o)), which provided that a collective bargaining agreement could exclude any time spent “in changing clothes or washing” at the beginning or end of each workday. 29 USC §203(o). Over the years, with the introduction of more specialized protective apparel and required equipment, what the employee put on at the beginning of the work shift and removed at the end of the shift evolved, so that in Sandifer, what the Court considered as “clothes” included a flame retardant jacket, a pair of pants, a hood, a hardhat, a snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs and a respirator.
The class of employees who brought the lawsuit argued that the activity of putting this apparel on and taking it off was no longer within the exclusion allowed by Section 3(o) of the Act – that it was more than “clothes” – and, therefore, the time spent donning and doffing such items should be compensable work time. The Court disagreed.
Because the employees suggested that the gear was not “clothing” and the employees were not “changing” as provided for in Section 3(o) of the FLSA, the Supreme Court analyzed the meaning of these terms. The Court had no problem finding that most of the safety apparel was “clothes,” reasoning that the term encompasses items that are designed to and used to cover the body and are commonly regarded as articles of dress. The Court observed that there was nothing in the term “clothes” that should exclude “protective clothing.” Moreover, the Court held that concept of “changing clothes” includes time spent in “altering dress,” which is essentially what takes place at the beginning and end of each shift.
With regard to the three items that were not “clothes” (safety glasses, earplugs and a respirator), the Court determined that the first two were not commonly regarded as articles of dress and the third one was neither regarded as an article of dress or intended to cover the body. Nonetheless, the Court ruled that the employees need not be compensated for the time donning or doffing those individual items. The Court held that “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,” and concluded that the answer was yes.
The Court’s unanimous common sense approach to this issue has been properly hailed as a victory for employers, particularly in the manufacturing, poultry and meat processing industries, where most of the donning and doffing cases have arisen. The decision will give clarity to the courts, as well as the parties.
Employers, however, should be equally cognizant of the limitations in this decision. First, the Section 3(o) exclusion applies only to employees who are covered by a collective bargaining agreement. Second there must be evidence, either express or by practice, that the parties agreed not to pay the employees for time spent donning or doffing the subject clothes.
Finally, employers should be aware that the Section 3(o) exclusion might not be contained in their respective state wage and hour laws. Many states have pay regulations that differ from their federal counterparts, and many FLSA exclusions and exemptions are, therefore, unique to federal law. Prior to negotiating or re-negotiating Section 3(o) language into a labor contract, the employer should be confident that the exclusion applies equally to any state law claims.