The Supreme Court’s unanimous decision in Sandifer v. United States Steel Corp., No. 12-417 (January 27, 2014) should serve as an impetus for all employers to review their pay practices with respect to paying employees for changing into and out of safety related clothes and equipment before the start of and following the conclusion of the workday.
Sandifer involved an effort by a number of current and former bargaining unit employees of the employer’s steelmaking facilities to receive backpay for time spent donning and doffing various pieces of protective gear that the employer required them to wear. There were twelve items of protective gear at issue: a flame-retardant jacket, pair of pants and hood, a hardhat, a snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs and a respirator.
The employer argued that payment for what it conceded would be otherwise compensable time under the Fair Labor Standards Act (“FLSA”) was excused by a provision in its collective bargaining agreement that declared the time was noncompensable. The employer’s defense hinged on application of a provision of the FLSA, 29 U.S.C. § 203(o), that allows parties involved in a collective bargaining relationship to decide that time spent “changing clothes” at the beginning or end of each workday is noncompensable. In short, the question was whether the safety-related items at issue were considered to be “clothes” covered by the exception.
The federal district court granted summary judgment to the employer on this issue and the Court of Appeals for the Seventh Circuit affirmed. One significant aspect of the lower court decisions was a conclusion that even if the various items of protective gear at issue were not “clothes,” the time spent donning and doffing was de minimus and thus, noncompensable anyway. De minimus time engaged in activities related to the job at the beginning or end of a shift has long been recognized by the courts as being able to be excluded from compensable time if it is of very short duration (usually under five minutes).
The Supreme Court held that the items of safety apparel at issue, with the exception of the safety glasses, earplugs and respirator, fell within the definition of “clothes” and consequently, were a proper subject for collective bargaining over whether compensation should be paid for time spent in donning and doffing. Thus, the parties’ specific agreement to declare this time noncompensable was within the Act’s “changing clothes” exclusion. As to the equipment that it did not consider clothes, the Court indicated that use of the de minimus doctrine to excuse payment was incompatible with the FLSA and held instead that courts should focus on a more general examination of “whether the period at issue can, on the whole, be fairly characterized as “time spent on changing clothes or washing.” As the Court stated:
If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items 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 qualifies, and the time spent putting on and off other items need not be subtracted.
Lessons and Considerations
Employers and unions may agree that time spent donning and doffing protective clothing is not compensable.
The lack of an express provision in an employer’s labor agreement does not preclude use of the §203(o) exclusion. Section 203(o) also applies where changing clothes and washing is noncompensable “by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” Thus, if there is a longstanding, consistently applied custom or practice to not pay bargaining unit employees for changing clothes, this practice may qualify for the §203(o) exclusion.
Employers should compare the clothing/equipment it requires employees to wear with the items considered and classified by the Court. Specifically, employers should bear in mind the Court’s view that safety glasses, earplugs and respirators are not “clothes.”
Apply the “on the whole” time test to your situation.
If the vast majority of time is spent donning or doffing “clothes” then the entire period is not compensable.
If the vast majority of time is spent donning or doffing equipment or non-clothes items, then this time is compensable. Be cautious in trying to separate out the “changing clothes” time in this circumstance for pay purposes because putting on non-clothes items required by the employer will likely trigger the start of the regular workday and the §203(o) exclusion will no longer be applicable.
Keep in mind that this exception only applies to donning and doffing that occurs both before and after the scheduled workday.
There is no similar exception for non-union employers. Non-union employers must compensate workers for putting on and taking off clothes, including protective gear, provided it is integral and indispensable to a principal activity or activities which an employee is to perform. Generally, when an article of clothing or protective gear is required to be worn by the employer, or by a state or federal regulation or by the nature of the work, it is considered to be integral and indispensable to a principal activity.
The Court’s general discussion on the application of the de minimus doctrine raises questions about its continued viability as a defense to FLSA claims arising outside of the §203(o) exclusion. If employers have relied upon this doctrine to treat work activities as noncompensable, it would be wise to reevaluate.