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eLABORate: Supreme Court Tackles the FLSA's Clothes-Changing Rule

January 28, 2014

The Supreme Court has decided an important wage-and-hour case for employers with unionized workforces. In Sandifer v. U.S. Steel Corp, a collective-bargaining agreement provided that time spent changing clothes at the beginning and end of each work day was noncompensable. Members of the collective-bargaining unit sought a ruling that the “donning” and “doffing” of certain protective gear did not qualify as “changing clothes” and thus required wage payments for the time spent in such activities.

In resolving the case, the Court fashioned a definition for the phrase “changing clothes” under section 203(o) of the Fair Labor Standards Act, which allows employers and unions to bargain over the compensability of time spent changing clothes, regardless of whether changing clothes would be a compensable, “integral and indispensable” part of the employee’s principal work activities if there was no collective-bargaining agreement at issue. The Court, in particular, held that “changing clothes” encompasses items that “are both designed and used to cover the body and are commonly regarded as articles of dress.” Applying the definition in the Sandifer case led to the conclusion that donning and doffing a flame-retardant jacket, pair of pants, hood, hardhat, snood, wristlets, work gloves, leggings, and metatarsal boots were noncompensable under the collective-bargaining arrangement between the employer and union.

The Court also considered the compensability of activities that did not fall within the clothes-changing definition. It held that the application and removal of safety glasses, earplugs, and a respirator were noncompensable activities because of the limited time spent on these activities compared to the time spent on activities that did fall within the definition of changing clothes. The Court rejected the approach of some courts that called for evaluating whether the time spent on donning or doffing the individual item not considered to be “clothing” was such a short period that it could be considered “de minimis.” Moving forward, the question for courts will be “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes’” or whether the period is more appropriately characterized as time spent on activities falling outside the clothes-changing definition articulated by the Court.

Ultimately, the decision is a win for unionized employers that require bargaining-unit employees to wear protective equipment in performing their jobs. The Court adopted a reasonable definition for what activities constitute “changing clothes” and jettisoned the hair-splitting de minimis analysis used by some courts of appeal. There is potential downside to the Court’s decision on the de minimis issue, however, if courts determine that the bulk of the time at issue is spent on activities that are not considered clothes changing. Employers with litigation over issues under Section 203(o) and with negotiations on the horizon need be aware of the Sandifer decision, and evaluate their positions accordingly.