Supreme Court: Time Spent "Changing Clothes" Not Compensable

by Polsinelli
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In rare agreement, the Supreme Court unanimously decided Monday that "changing clothes" as set forth in Section 203(o) of the FLSA includes donning and doffing protective gear, and can be non-compensable time under a collective bargaining agreement ("CBA"). The case is Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241, --- S.Ct. ---- (Jan. 27, 2014).

In Sandifer, a group of current and former union employees of a steel plant complained that they were required to wear 12 pieces of protective gear for their work. They sought payment for the time spent "donning" and "doffing" the gear before and after their shifts. The District Court in Indiana and the Seventh Circuit both found the employees' time non-compensable: Section 203(o) of the FLSA allows the parties to exclude time spent "changing clothes" at the beginning or end of the workday as part of their CBA, which the Union and Employer at this facility had done.

The Supreme Court affirmed, and disagreed with the workers' argument that the protective gear did not qualify as "clothes" under Section 203(o), noting that "[w]e see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing." Then, the Court also rejected the employees' argument that the donning and doffing did not qualify as "changing" under Section 203(o). The Court explained that at the time of Section 203(o)'s enactment, "'changing' carried two common meanings . . .: to 'substitute' and to 'alter,'" and "despite the usual meaning of 'changing clothes,' the broader statutory context makes it plain that 'time spent in changing clothes' includes time spent in altering dress."

The Court applied the above analysis to 9 of the 12 protective items to hold that time spent donning and doffing those 9 items was non-compensable under Section 203(o), pursuant to the parties' CBA. As for the remaining 3 items (glasses, earplugs, and a respirator), the Court held the time spent donning and doffing these items was non-compensable, explaining that "if the vast majority of the time is spent in donning and doffing 'clothes' . . . , the entire period qualifies" as non-compensable. In response to the employees' efforts to parse out the various items at issue, the Court rejected the Seventh Circuit's express holding on this particular aspect, which had found that the 3 items were subject to a de minimis standard. Of potential broader application, the Court avoided using "de minimis" language. In fact, writing for the Court, Justice Scalia held "we doubt that the de minimis doctrine can be applied to the present case." Instead, the question for courts is whether the period at issue can, on the whole, be fairly characterized as changing clothes or washing.

Monday's decision is limited to donning and doffing scenarios covered by Section 203(o) that are addressed in CBAs, and allows employers to collectively bargain so as to exclude time spent changing any types of clothes, including protective clothing, before and after the workday.

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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