Yesterday, in Sandifer v. U.S. Steel Corp., the U.S. Supreme Court held that the Fair Labor Standards Act does not require unionized employers to compensate employees for time spent putting on and taking off certain protective clothing if they have a collective bargaining agreement that excludes this time as compensable work time.
The U.S. Department of Labor’s regulations have long-required employers to pay employees for time spent changing into protective gear and equipment, as well as the time spent taking it off, if that gear is required to perform the job. 29 C.F.R. § 790.9(c). But under Section 203(o) of the FLSA, employers do not have to pay employees for time spent “changing clothes or washing at the beginning or end of each workday” if a “bona fide collective-bargaining agreement” excludes that time as compensable work time. 29 U.S.C. § 203(o). The question before the Supreme Court was whether a specific list of items could be considered “clothes” within the meaning of Section 203(o): flame-retardant jackets, pants, hoods, hardhats, “snoods,” “wristlets,” work gloves, leggings, steel-toe boots, safety glasses, earplugs, and a respirator. (A snood is a hood that covers the head, neck, and upper shoulder area, and wristlets are essentially detached shirt sleeves.)
The Court found that with the exception of safety glasses, earplugs, and respirators, these items fell within Section 203(o)’s clothes exception and the time spent putting them on and taking them off was not compensable work time if the labor contract so excluded it. The Court reasoned that while these items had protective qualities, these items “are commonly regarded as articles of dress.” For example, according to the Court, a “hardhat is simply a type of hat.” On the other hand, safety glasses, earplugs, and respirators are not commonly regarded as articles of dress.
Additionally, the Court also held that employers do not have to compensate employees for time spent putting on and taking off protective items—even if they are not clothes within the meaning of Section 203(o)—if the vast majority of their time before and after their primary work duties involves changing into and out of clothes that do meet Section 203(o)’s definition of “clothes.” In other words, “if the vast majority of the time is spent in donning and doffing ‘clothes’ as defined [in Sandifer], the entire period qualifies [as non-compensable time], and the time spent putting on and off other items need not be subtracted.”
Although the Court’s decision in Sandifer definitely falls in the win column for employers, it seems to leave open a number of questions. For example, why is a hardhat merely a “type of hat” and classified as clothing, rather than as a piece of protective equipment, when hardhats are almost always worn only for protection for certain jobs? How are hardhats (clothing) any different than safety glasses (protective equipment)? Given the Court’s rather strained reasoning over what constitutes “clothes,” the Court gave little guidance to determine what else fits within Section 203(o)’s exception besides the items it specifically considered in Sandifer. Even the Court acknowledged “that it may be impossible to eliminate all vagueness when interpreting a word as wide-ranging as ‘clothes.’” And what happens if the time putting on and taking off compensable protective items and non-compensable clothes is roughly even? Is this paid or unpaid time under Sandifer?
Despite these lingering questions, employers must remember that this ruling only applies to employers with unionized workforces with the necessary language in a collective bargaining agreement. Nonunion employers must always pay employees for time spent changing into and out of protective gear and equipment that is required to perform their jobs.
Unionized employers should proceed with caution after Sandifer and evaluate what items employees put on before they work and take off after, and consider whether the time spent do so should be paid work time or not.