A version of this article was originally published in the March 2014 issue of The HR Specialist. It is reprinted here with permission.
On January 27, 2014, a unanimous U.S. Supreme Court interpreted the meaning of the term “changing clothes” found in the Fair Labor Standards Act (FLSA or Act), specifically at 29 U.S.C. § 203(o). This case is significant for unionized employers in a wide range of industries, including in food processing and manufacturing, where workers are required to change in and out of various types of clothing at the beginning and end of their work days. In Sandifer v. United States Steel Corporation, the plaintiffs (and “petitioners” to the Supreme Court) were a group of current or former employees of the defendant’s steelmaking facilities who filed a putative collective action seeking back pay for time spent “donning and doffing” various pieces of clothing and protective gear. The plaintiffs asserted that U.S. Steel requires the workers to wear these items because of hazards regularly encountered in steel plants. The plaintiffs specifically set forth twelve types of protective gear that they are required to wear, such as flame retardant jackets and pants, hoods, hardhats, snoods, work gloves, leggings, steel toed boots, wristlets, safety glasses, earplugs and a respirator. The time spent “donning and doffing” these items would otherwise be compensable under the FLSA. The issue in the case is the validity of a provision in the collective bargaining agreement between the union representing the employees and U.S. Steel. The validity specifically turns upon the applicability of 29 U.S.C. § 203(o), which provides that in a unionized setting the time spent “changing clothes” may be excluded from compensable time through negotiation by parties to a collective bargaining agreement.
The District Court granted summary judgment to U.S. Steel on this issue holding that the donning and doffing of the required protective gear constituted “changing clothes” within the meaning of §203(o). The District Court went further and held that the time spent putting on and taking off certain items that do not constitute “clothes” under the Act was “de minimis” and therefore non-compensable. This decision was upheld by the Seventh Circuit Court of Appeals. The U.S. Supreme Court granted certiorari regarding this specific issue.
The Supreme Court closely examined the meaning of the word “clothes” in the Act and relied upon a number of sources, including dictionaries from the time period that § 203(o) was enacted in 1949, and concluded that the word should be interpreted taking its “ordinary, contemporary, common meaning.” The Court determined that contemporaneous dictionaries defined “clothes” as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The plaintiffs argued that the word “clothes” would necessarily exclude items designed and used to protect against workplace hazards, thereby trying to create a distinction between “protection” and “decency and/or comfort.” The Supreme Court rejected this definition and explained that “protection” and “comfort” are terms that “are not incompatible, and are often synonymous.” The varying interpretations of the word “clothes” among several of the Circuit Courts had prompted the Supreme Court to grant certiorari.
The Supreme Court rejected the definition proposed by both the employees and the employer holding that the employees’ definition was much too narrow and, conversely, the employer’s definition was a “capacious construction” as it proposed that the “entire outfit that one puts on to be ready for work” is encompassed in “clothes.” Although Justice Scalia, who wrote the Opinion for the Court, conceded that the employer’s interpretation would be “more readily administrable,” it nevertheless was even further afield from the textual foundation of the FLSA than plaintiffs’ offering. Accordingly, the definition set forth by the Court “leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices,” but also “does not exclude all objects that could conceivably be characterized as equipment.”
Having settled upon the meaning of “clothes,” the Court then considered the meaning of the word “changing.” Plaintiffs argued that items of protective gear that were put on “over” their street clothes were not within the meaning of § 203(o). The Court disagreed with the plaintiffs’ position that changing clothes only meant “substitution,” finding that the additional meaning of “alter” was also a common meaning at the time of § 203(o)’s enactment. Therefore, the Court determined that “changing clothes” includes not only substituting clothing but also time spent in “altering dress.” Returning to the facts of the case and the plaintiffs’ designation of the twelve particular items, the Court found that nine of the items would fit into its definition of “clothes” and that, by contrast, the three remaining items – safety glasses, earplugs and respirator – would not fall within the Court’s definition because “they are not commonly regarded as articles of dress.”
The Court then turned to the issue of whether the time putting on and off these items outside of the definition of “clothes” should be deducted from the non-compensable time. The courts below invoked the doctrine of de minimis non curat lex (the law does not take account of trifles) on this issue and found that they could simply declare the few minutes actually spent donning and doffing these items as non-compensable. The Supreme Court rejected the use of the de minimis doctrine since it considered that the statute itself to be “all about trifles – the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their job.” Underlying the Court’s reasoning was that this interpretation of § 203(o) would “convert federal judges into time-study professionals” and instead framed the question for the courts as to “whether the period at issue can, on the whole, be fairly characterized as time spent in changing clothes or washing.” Accordingly, the Court said that if the “vast majority” of time can be allotted to the changing of “clothes,” as defined by the Court, then “the entire period qualifies, and the time spent putting on and off other items need not be subtracted.” Conversely, if the vast majority of time is spent donning and doffing equipment or other items that do not fall within the Court’s definition, then the entire period expended by each employee would not be covered by § 203(o) and, therefore, be compensable.
Will the Sandifer case, although a favorable decision for unionized employers, be the end all in the application of § 203(o)? Certainly an employer who has negotiated that § 203(o) precludes payment for donning and doffing time will be buoyed by this particular case, as it may make plaintiffs’ counsel think twice before bringing this type of class action under the FLSA. In reality, federal courts faced with these cases will still have to make a determination as to whether a number of items used by employees in various industries are within the definition of “clothes” or not. What if “clothes” or other items falling outside the Supreme Court’s definition do not constitute a “vast majority” one way or the other? Will the trial courts be forced to consider expert reports to make this determination?
In conclusion, although this decision can be considered a “win” for unionized employers there are still questions open to interpretation in future cases concerning §203(o) of the FLSA.