Supreme Court Decides What it Means to “Change Clothes”

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And you thought the U.S. Supreme Court only decided weighty issues. Actually, in the context of a unionized workforce, the Court’s decision in Sandifer v. United States Steel Corp. is a positive development for employers, but for employers of non-unionized workforces the opinion is potentially troublesome.

The facts are straightforward. Employees at U.S. Steel were required to spend unpaid time each day putting on and taking off protective clothing such as flame-retardant suits and gloves, protective boots, hard hats, safety glasses, ear plugs, respirators, etc. The employees argued that the time was compensable and filed a collective action under the Fair Labor Standards Act on behalf of several hundred former and current employees. U.S. Steel, however, pointed to §203(o) of the FLSA and a provision in the collective bargaining agreement (“CBA”) with the employees’ union in which the union agreed that “time spent in changing clothes...was not compensable.”

The Court parsed the phrase “changing clothes”, first finding that “clothes” included protective clothing – “We see no basis for the proposition that the unmodified term ‘clothes’ somehow omits protective clothing.” The Court then focused on the word “changing,” finding that it meant any time spent “altering dress.” Thus, the Court agreed with U.S. Steel that time spent by employees altering their dress by putting on or taking off protective clothing was not compensable under the terms of the CBA and §203(o) of the FLSA – a positive development for employers of unionized workforces with CBA’s containing similar language.

However, the Court addressed another argument of U.S. Steel – that so little time was spent putting on and taking off protective clothing each day that it was de minimis (i.e., insignificant) and thus should be non-compensable. The de minimis doctrine has been successfully used by employers to deflect FLSA liability for over 50 years. The Court sounded a death nell for the de minimis doctrine in the context of a CBA with a unionized workforce – “[the] de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles...” and that “there is no more reason to [apply the doctrine] to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to [reject the doctrine and compensate] the minute or so necessary to put on [protective clothing].” It is unclear whether other courts will extend this reasoning to other types of FLSA claims (i.e., missed meal breaks, computer boot up and shut down time, improper rounding of recorded time, etc.) in non-unionized workforces and thereby greatly expand the potential liability of most employers for trifling underpayments of wages and for the associative significant legal fees of employees’ counsel.