For years, plaintiffs’ lawyers have brought class actions against employers seeking compensation for time spent by employees putting on and taking off protective gear. The numbers have been staggering, as eight figure settlements have become commonplace. That is especially true in industries using heavy machinery, like poultry producers.
The Department of Labor has taken the position that time spent by employees changing clothes is compensable when it is “so directly related to the specific work the employee is employed to perform that [it] would be regarded as an integral part of the employee’s ‘principal activities.’” So, getting dressed to go to work in the morning is not compensable for an employee in a professional workplace. But, what about an employee who has to wear protective gear at work? According to the DOL, that time ordinarily is compensable. For example, in a 2005 decision, the U.S. Supreme Court found that time spent donning and doffing protective gear by employees in a poultry plant was compensable because it was integral to their work.
However, the Fair Labor Standards Act (FLSA) contains an exception to that rule for employees who work under a collective bargaining agreement. Under the FLSA, an employer and a union can agree that time spent “changing clothes” can be excluded from working time. Often, employees who wear the protective gear that is commonly the subject of these suits work in unionized workplaces, so this exception to the rule has been heavily litigated.
The plaintiffs’ bar maintains that time spent “donning” and “doffing” protective gear is not “changing clothes” and therefore cannot be excluded in a union contract. Why? They argue: (1) protective gear are not “clothes”; and (2) no clothes are being “changed” — they are merely being put on top of an employee’s street clothes.
After decades of uncertainty, the U.S. Supreme Court entered the fray and, for once, issued a unanimous decision favoring employers. In Sandifer v. United States Steel Corp., the Court found that a union contact can, in most cases, exclude time spent donning and doffing protective gear is non-compensable under the FLSA and, in so doing, rejected most of the arguments set forth by the plaintiffs’ bar. It rejected the argument that “clothes” do not include protective gear. And it rejected the notion that putting on protective gear was not “changing” clothes if an employee put the gear over his street clothes.
In this particular case, the Court found that most of the gear involved — a jacket, pants, a hood, a hardhat, gloves, leggings, and boots — were “clothes” that could be excluded from compensation in a collective bargaining agreement. It did, however, find that glasses, earplugs and a respirator are not “clothes.” But on that last point, it found that if the majority of the time spent by employees was spent donning and doffing “clothes,” the fact that non-”clothes” were involved did not render any time spent donning and doffing them compensable.
For employers operating under a union contract, this a big win. They now enter bargaining knowing that this time can be excluded and their litigation risks significantly minimized.