U.S. Supreme Court Says Donning and Doffing Certain Protective Gear Falls Within Meaning of “Changing Clothes” in Fair Labor Standards Act; Not Compensable Under Collective Bargaining Agreement

In Sandifer et al. v. U.S. Steel Corp., No. 12-417 (Jan. 27, 2014), a unanimous Supreme Court recently affirmed a grant of summary judgment in favor of U.S. Steel Corp. (“Defendant”). The Court held that time spent by Plaintiffs, former and current employees of Defendant’s steelmaking facilities, donning and doffing protective gear at the beginning and end of each workday was not compensable under a collective bargaining agreement (“CBA”) between Defendant and Plaintiffs’ union. This holding was based on the Court’s finding that Plaintiffs’ donning and doffing of their protective gear constituted “changing clothes” as that term is used in the Fair Labor Standards Act of 1938 (“Act”).

The most common kinds of protective gear that Plaintiffs were required to wear included the following items: a flame-retardant jacket, pair of pants, and hood; work gloves; a hardhat; leggings; steel-toed boots; earplugs; safety glasses; and a respirator. The Court noted that because the time Plaintiffs spent donning and doffing this safety gear would ordinarily be compensable under the Act, Defendant’s contention that it was not compensable depended on the validity of a provision in the CBA stating that such time was not compensable. The validity of that CBA provision depended, in turn, on the applicability of a provision of the Act, 29 U.S.C. § 203(o), to the time at issue. That subsection of the Act allows parties to agree, as part of a CBA, that time spent “changing clothes” at the start and end of each workday is not compensable.
Before beginning its analysis on the applicability of § 203(o) to the Plaintiffs’ donning and doffing of protective gear, the Court discussed the history of the Act. The Court noted that the broad interpretation of the terms “work” and “workweek,” as used in the Act, led to the passage of legislation intended to limit the application of the Act. The Portal-to-Portal Act, on such piece of legislation, excluded from compensable time activities that occur before an employee commences his principal work activity or after he ceases that activity. In addition, a subsequent Department of Labor interpretative bulletin indicated that “changing clothes” would be considered a preliminary or postliminary activity, and thus not compensable, when performed outside the workday. That same interpretative bulletin, however, stated that those actions could, in certain situations, be so closely related to an employee’s “principal activity” that they would be considered an integral part of the “principal activity” and thus compensable.
After the Act was amended in 1949 to include § 203(o), the Supreme Court, in both Steiner v. Mitchell, 350 U.S. 247 (1956), and IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), explicitly adopted the Department of Labor’s interpretation of the statutory framework, holding that “changing clothes,” when “integral and indispensable” to an employee’s “principal activity,” is itself a “principal activity.” In IBP, the Court applied this principle in determining that the donning and doffing of certain protective gear was compensable under the Act.

The Court began its analysis of the issue before it by examining the meaning of the word “clothes” as it is used in the Act. Plaintiffs argued that this term did not include items designed to protect against workplace hazards, while Defendant argued that the term included anything worn on the body. The Court, however, adopted neither of these arguments, holding that “clothes” denotes items designed and used to cover the body and commonly regarded as articles of dress. The Court noted that adopting Plaintiffs’ interpretation of “clothes” would strip § 203(o) of much of its force, given that protective gear is the only clothing that is “integral and indispensable” to the work of numerous occupations.

Having defined “clothes,” the Court proceeded to its next task: defining “changing” as it is used in the Act. Plaintiffs took the position that the term connotes substitution; thus, protective items that are put on over clothing do not fall within the scope of § 203(o). The Court rejected Plaintiffs’ argument on this point as well, based in part on the fact that in addition to substitution, “changing” has another common meaning: alteration. In addition, Plaintiffs’ interpretation would eliminate the predictability sought through the collective bargaining process and § 203(o), as it would allow workers to unilaterally decide whether to opt out of § 203(o)’s coverage by layering work clothes over street clothes rather than exchanging the latter for the former.

Turning to the facts of the case at bar, the Court first held that of the twelve items that Plaintiffs were commonly required to wear, only three, safety glasses, earplugs, and a respirator, were not “clothes.” The question thus became whether the time donning and doffing these three pieces of protective gear must be separated from the non-compensable time donning and doffing the other items. In answering this question, the Court focused on § 203(o)’s emphasis on the “time spent” changing clothes. This emphasis, the Court decided, meant that if an employee spends the vast majority of the time at issue donning and doffing non-clothes items, no amount of that time would constitute “changing clothes” under § 203(o), even if the employee did spend some time donning and doffing clothes. On the other hand, if the majority of the employee’s time was spent donning and doffing clothes, the entire period would fall within the scope of § 203(o). Because the time spent by Plaintiffs in donning and doffing earplugs and safety glasses was minimal, it was not compensable under the CBA. The time spent putting on respirators was likewise not compensable because they were put on during the course of a day when needed and thus part of Plaintiffs’ normal workday.

Although the Court’s definition of “clothes” does not lend itself to a black-and-white interpretation (which the Court itself acknowledged), the Court’s opinion provides employers with some assurance that the compensability of the time spent by their employees donning and doffing items that fit within that definition will be governed by the terms of the parties’ CBA. This result will help provide employers with the predictability on the issue of compensable time that was intended with the enactment of § 203(o) of the Act.

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