The Fair Labor Standards Act permits employers and unions to agree to exclude from compensable time, the time spent washing and changing clothes. Does this include agreeing about putting on and taking off “protective clothing?” The U.S. Supreme Court has given us the answer: whether time spent “donning or doffing” “clothes” or “clothing” that is integral and indispensable to work to be performed is subject to an agreement between the employer and the union. “Clothing,” though, excludes some items of equipment that are worn on the body. Specifically, the Court mentioned knife holders, hard hats, and ear plugs as not being clothing. So, in applying the FLSA, courts will have to decide whether the time spent is largely about protective clothing or non-clothing equipment. Thus, the new rule: (a) if the ”vast majority” of “time spent in changing clothes” was spent donning and doffing “equipment” other than “clothes,” the entire time is compensable (regardless of any employer-union agreement), but (b) if the “vast majority” of the time is spent donning and doffing “clothes” or “clothing,” then the employer and union can agree to exclude all the time from the workday, even the time spent on equipment like knife holders and hard hats. We can hope that this decision will let federal judges avoid listening to battles of time study experts in donning and doffing cases, but in close cases, the judges will have to decide which tasks make up the “vast majority” of the time spent donning and doffing. Sandifer v. United States Steel Corp., No. 12-417 (U.S. January 27, 2014).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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