On January 27, 2014, the United States Supreme Court unanimously affirmed a decision by the U.S. Court of Appeals for the Seventh Circuit holding that steelworkers’ donning and doffing of certain items of required protective gear constituted “changing clothes” within the meaning of section 203(o) of the Fair Labor Standards Act (FLSA). Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241 (Jan. 27, 2014).¹  Because the time spent by the steelworkers donning and doffing their protective gear was excluded from working time under their collective bargaining agreements, the Supreme Court held that the time was not compensable by operation of section 203(o).

In 2007, Plaintiff Sandifer filed his collective action in the United States District Court for the Northern District of Indiana pursuant to 29 U.S.C. § 216(b) of the FLSA on behalf of himself and 800 former and current hourly workers at U.S. Steel’s steel works in Gary, Indiana. The plaintiff steelworkers alleged that U.S. Steel violated the FLSA by failing to compensate them for time spent donning and doffing 12 different types of protective clothing, including a flame-retardant jacket, a pair of pants, a hood, a hardhat, a “snood,” “wristlets,” work gloves, leggings, “metatarsal” boots, safety glasses, earplugs, and a respirator.

In its motion for summary judgment before the district court, U.S. Steel contended that the steelworkers were not entitled to relief based on section 203(o) of the FLSA and the terms of the applicable collective bargaining agreements. With respect to section 203(o), U.S. Steel argued that the FLSA excludes from the compensable work day time spent “changing clothes” as that term is used in the statute where a bona fide collective bargaining agreement excludes, by its express terms or by a custom or practice under the agreement, time spent changing clothes from compensable work time. The statute does not define “clothes” or “changing clothes.” The steelworkers argued, however, that section 203(o) was inapplicable to their claim because the protective clothing and equipment they wore were not “clothes” within the meaning of the statute, but rather “personal protective equipment” that protected steelworkers against workplace hazards.

Recognizing the continuing disagreement on the proper interpretation of “changing clothes” under section 203(o), the district court found that the term “clothes” as used in the statute should be given its ordinary, contemporary, common meaning, i.e., covering for the human body or garments in general. The district court reasoned that whether an item of protective gear should be considered “clothes” depends on the exact nature of the item and the circumstances under which it is used – not on what the items are called by the collective bargaining agreement. The district court found that the jacket, pants, hood, snood, leggings, wristlets, and boots easily fell within the ordinary definition of “clothes.” The district court further found that the time spent donning and doffing the other items was minimal, or de minimis, and thus not compensable under the FLSA. 

Affirming that decision, the Seventh Circuit held that given the terms of the collective bargaining agreement, U.S. Steel was not required to compensate its steelworkers for the time spent changing in and out of the protective clothing. The Seventh Circuit noted that its decision was in accordance with all but one appellate court decision – Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003) (holding that specialized gear worn by employees at meat slaughtering and processing plants was different from typical clothing and that changing clothes means something different from donning required specialized personal protective equipment). The Seventh Circuit rejected the steelworkers’ argument that the protective gear could not be “clothing” because it was personal protective equipment. The appellate court reasoned that protection is a common function of clothing, especially with respect to work clothes worn by factory workers, and that “[i]t would be absurd to exclude all work clothes that have a protective function from section 203(o), and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.” Sandifer, 678 F.3d at 594. With respect to the glasses, ear plugs, and hardhat, however, the appellate court held that while such items may not be clothing in the ordinary sense, the time spent putting these items on is de minimis and not compensable. The Seventh Circuit did not address respirators at all.

The Supreme Court limited its review to the sole issue of what constitutes “changing clothes” within the meaning of section 203(o). In affirming the Seventh Circuit, the Court first examined the definitions of the words “clothes” and “changing.”

Because the term “clothes” is not defined in the statute, the Court concluded that the word would be interpreted by its ordinary, contemporary, common meaning. Sandifer, 2014 WL 273241, at *5. Basing its definition on the dictionaries from the era that section 203(o) was enacted, the Court set forth the following definition of “clothes”: items that are both designed and used to cover the body and are commonly regarded as articles of dress.

In reaching this definition, the Court rejected the steelworkers’ proffered definition of clothes, concluding that the plain definition of the word clothes does not exclude, either explicitly or implicitly, items with a protective function. Id. The Court reasoned that the steelworkers’ suggested definition of clothes might reduce section 203(o) to “near nothingness.” Id. at *6. Notably, the Court pointed out that section 203(o) provides an exception with respect to the changing of clothes only when such “conduct constitutes an integral and indispensable part of the principal activities for which covered workmen are employed.” Id. (citing Steiner v. Mitchell, 350 U.S. 247, 256 (1956)). And for factory workers, butchers, longshoremen, and a host of other occupations, protective gear is the only clothing that is integral and indispensable to their work. Id. The Court further reasoned that the statutory context makes clear that the “clothes” referred to in section 203(o) are items that are integral to job performance. Id. Indeed, the Court acknowledged that the donning and doffing of other items not integral to job performance would not create a claim to compensation under the FLSA, and hence there would not be any need for the section 203(o) exception. Id. The Court noted that its definition of clothes leaves room for distinguishing between clothes and wearable items that are not clothes, such as necklaces, knapsacks, and tools. Id.

The Court next considered the definition of “changing,” noting that the term carried two common meanings at the time section 203(o) was enacted – to “substitute” and to “alter.” Id. at *7. The Court reasoned that, in the context of the statute, the word “changing” means more than mere substitution. The Court held that instead, the “time spent in changing clothes” includes time spent in altering dress. Id.

Relying upon its definitions of “clothes” and “changing,” the Court held that the steelworkers’ donning and doffing of the protective gear at issue qualified as “changing clothes” within the meaning of section 203(o). Id. at *8. The Court specifically held that the first nine items at issue – flame-retardant jacket, pair of pants, hood, hardhat, snood, wristlets, work gloves, leggings, and metatarsal boots – clearly fit within the Court’s interpretation of clothes. Id. That is, those nine items are both designed and used to cover the body and are commonly regarded as articles of dress. Id.

With respect to the three remaining items, however – safety glasses, earplugs and respirator – the Court held that those items did not satisfy its definitions. Id. The Court stated that the relevant question was instead whether the time devoted to putting these items on and off must be deducted from the non-compensable time. Id. If such is the case, the Court noted that federal judges would be required to separate the minutes spent changing clothes and washing from the minutes spent on other activities during the period in question. Id. The Court highlighted that some appellate courts, including the Seventh Circuit in the instant case, have avoided the foregoing question by invoking the de minimis doctrine. Id. at *9. The Court, however, found that the de minimis doctrine could not be applied to the present case, because the statute at issue “is all about trifles – the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs.” Id. The Court concluded that the question for courts is whether the period at issue can, on the whole, be fairly characterized as time spent in changing clothes or washing. Id. If the vast majority of time is spent in donning and doffing “clothes” as defined by the Court, the entire period qualifies under section 203(o), and the time spent putting other items on and off need not be subtracted. Id. The Court held that such was the case for the steelworkers in Sandifer and agreed with the lower courts that the time expended by each employee donning and doffing safety glasses and earplugs was minimal. Id. at *10. The Court declined to disturb the district court’s factual conclusions with respect to the respirators. Id. The Court merely highlighted the district court’s finding that the respirators were kept and put on as needed at certain job locations, thereby rendering the time spent donning and doffing respirators part of an employee’s normal, compensable workday and thus beyond the scope of section 203(o). Id.

¹ Justice Sonia Sotomayor joined the opinion except as to footnote 7. In footnote 7, the Court concluded that the narrow-construction principle applicable to the FLSA exemptions is inapplicable to a provision appearing in section 203, entitled “Definitions.”