Supreme Court Clarifies Meaning Of "Changing Clothes" Under The Fair Labor Standards Act

by Fisher Phillips
Contact

On January 27, 2014, the U.S. Supreme Court held that the time spent by employees donning and doffing (putting on and taking off) certain protective gear is not compensable under Section 203(o) of the Fair Labor Standards Act (FLSA). This ruling will significantly impact the ability of employees to seek compensation for the donning and doffing of certain items in the unionized setting. Additionally, the Court made comments about the de minimis doctrine which could well impact employers in the nonunionized environment. Sandifer v. United States Steel Corp.

Background

In recent years, numerous courts have considered the issue of whether donning and doffing of certain items may be compensable.

In the nonunion setting, this has traditionally called for an analysis of, among other things, the type of items at issue and the length of time it takes to don and doff those items. But the analysis is somewhat different in a unionized facility. There, employees can bargain away their right to have any of the time considered to be “work” pursuant to Section 203(o) of the FLSA, which provides:

In determining for the purposes of [S]ections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

The issue for the Court was the proper interpretation of the phrase “changing clothes” as set forth in Section 203(o).  

Facts And History Of The Case

Unionized employees at U.S. Steel were required to don and doff certain items of personal protective equipment prior to walking to their work location. The personal protective equipment at issue consisted of, among other items, flame-retardant pants and a jacket, work gloves, metatarsal boots, a hard hat, safety glasses, ear plugs, a respirator, and a “snood” (a hood that covers the top of the head, the chin, and the neck). The employees were not compensated for this time and argued that such time should be compensable in a collective action under the FLSA that was filed on behalf of 800 former and current hourly workers in a federal district court.

The district court found that the FLSA did not require clothes-changing time to be compensable on these facts, but certified the issue of the compensability of the walking time for an interlocutory appeal to the U.S. Court of Appeals for the 7th Circuit. The district court also found that the Collective Bargaining Agreement (CBA) provided that the activities were non-compensable, which was not before the Supreme Court on appeal. 

The 7th Circuit, in an opinion written by Judge Posner, found that the personal protective equipment constituted "clothes". Posner stated, “[i]t would be absurd to exclude all work clothes that have a protective function from [S]ection 203(o), and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.”   

Judge Posner did place some limitation on what items could be considered clothes. He noted that not everything a person wears, such as glasses, ear plugs, or a watch, could be considered clothing. The opinion then considered other issues, such as whether subsequent walking time was compensable, but the Supreme Court only granted certiorari on the first issue.

The Supreme Court Ruling

The Supreme Court unanimously agreed with Judge Posner.  The Court began by reviewing the definition of the term “clothes,” as it was defined by dictionaries at the time of the enactment of Section 203(o) in 1949. The Court determined that “clothes” meant items that are both designed and used to cover the body and are commonly regarded as articles of dress. It found no reason to depart from that definition. 

The Court rejected the employees’ argument that the term “clothes” is not sufficiently broad to include items designed and used to protect against workplace hazards. It further found that the employees’ position would overly limit the application of Section 203(o) and was incompatible with the FLSA’s historical context. While the Court acknowledged the difficulty in crafting a general definition for the term “clothes,” it noted that its construction “leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.”    

Having addressed the proper definition of the term “clothes,” the Court then considered the meaning of “changing.” The Court found that “while it is true that the normal meaning of ‘changing clothes’ connotes substitution, the phrase is certainly able to have a different import.” The Court concluded the broader statutory context encompasses both actual changing and also layering garments atop one another after arriving on the job site. Applying these principles, the Court found that nine of the twelve items at issue fit within the interpretation of “clothes,” while glasses, earplugs, and a respirator did not. 

But the most meaningful and lasting aspect of the opinion may have come in the form of dictum regarding the de minimis doctrine. For over 60 years, courts have typically embraced the concept of the de minimis doctrine [which is Latin referring to a small or trivial amount] to conclude that certain instances of minimal donning and doffing at the beginning and end of each shift need not be compensated. The Court found that “[a] de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles . . .” (emphasis in original). The Court continued, “there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood.”      

What Does This Mean For Employers?

As a result of this ruling, unionized employees should not be able to recover under Section 203(o) for most time spent donning and doffing standard protective gear when an applicable CBA expressly excludes this activity from measured working time, or where the time is excluded under that CBA by custom or practice. In a broader context, this case apparently undercuts the viability of the de minimis doctrine, at least in the donning/doffing context. The Court seemed to confine its discussion of the de minimis doctrine to the context of a case under Section 203(o), but lower courts may well apply the Court’s reasoning to nonunionized workforces. 

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.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.