Yesterday (January 27), the Supreme Court issued a ruling that defines the word “clothes” for purposes of a federal statute that allows employers and unions to bargain over pay for time spent by employees “changing clothes or washing at the beginning or end of each workday.” According to Justice Scalia, who relies on a 1950 edition of Webster’s New International Dictionary, “clothes” are “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Justice Scalia wrote for a unanimous Court.
Back in early November, my partner Joshua Hawks-Ladds blogged here about the argument before the Supreme Court in Sandifer et al. v. U.S. Steel Corp., the case decided yesterday. As Josh observed, the cases that discuss the issue of whether employees must be paid for time spent putting on or taking off clothes and protective gear are often referred to as “donning and doffing” cases. A bit of context will help in understanding the Sandifer decision.
A provision of the Portal to Portal Act, 29 U.S.C. § 254, says that employees need not be compensated for time spent “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform” or for time spent in “activities which are preliminary to or postliminary to said principal activity or activities.” Regulations and caselaw have held that such activities as changing clothes and showering may, under appropriate circumstances, be “an integral and indispensable part” of the employee’s principal activity, and thus would be compensable working time. But another section of the statute (29 U.S.C. § 203(o)) says that employees need not be compensated for time spent “changing clothes or washing at the beginning or end of each workday” if the time is excluded from working time under a collective bargaining agreement.
The employees in Sandifer were steelworkers who had to put on protective gear in order to work in the plant: a flame-retardant jacket, pants, and a hood; a hardhat; a snood; wristlets; leggings; gloves; steel-toed boots; safety glasses; earplugs; and a respirator. U.S. Steel conceded that the time spent donning and doffing these items would ordinarily be compensable under the Fair Labor Standards Act, but it had negotiated a collective bargaining agreement that excluded the time from “working time.” So the issue before the Court was whether these items were “clothes,” so that the applicable provision of the collective bargaining agreement was permitted under Section 203(o).
The Court held that nearly all of the items at issue are “clothes” within the appropriate (dictionary) definition of the term, and that “changing” includes putting clothes on over other clothes. Even though the glasses, earplugs, and respirator were not “clothes,” the Court said that the time spent donning and doffing was “on the whole” devoted to “changing” clothes, so there was no need to compensate the employees for the portion of the time devoted to the specific non-clothes items.
It’s important to recognize that the Court has not now said that “donning and doffing” time is never compensable as working time. But it’s clear that changing into or out of protective clothing (as opposed, perhaps, to protective equipment) will not necessarily be considered integral to an employee’s principal working activities, and therefore may not necessarily be working time. In unionized workplaces, pay for donning and doffing time will continue to be a subject for bargaining. In non-unionized environments, employers must examine carefully whether donning and doffing time is required to be compensated under the particular circumstances of the workplace.
The decision in Sandifer v. U.S. Steel Corp. may be found at http://www.supremecourt.gov/opinions/13pdf/12-417_9okb.pdf