Supreme Court Holds That Items of Protective Clothing Are ‘Clothes’ for Purposes of the FLSA, and Questions the Viability of the De Minimis Rule in FLSA Cases

by Cozen O'Connor

The U.S. Supreme Court yesterday released its much-anticipated decision in the case of Sandifer v. United States Steel Corporation, and held that Section 203(o) of the Fair Labor Standards Act (FLSA) — which allows parties to a collective bargaining agreement to decide for themselves through negotiations whether “time spent in changing clothes … at the beginning or end of each workday” is compensable — applies to articles of protective clothing such as flame-retardant jackets, pants, hoods, snoods, wristlets, leggings, hardhats, work gloves and steel-toed boots.

The petitioners in the case argued that because these items have a protective function, they are not “clothes,” and therefore the time spent changing into and out of them at the beginning and end of each work day should have been paid, despite a provision in a collective bargaining agreement between the parties that clothes changing time would be noncompensable. More specifically, the petitioners argued that “clothes” are articles that provide “decency and comfort,” as opposed to articles designed to protect against workplace hazards. The Court rejected this argument, noting that such a distinction “runs the risk of reducing § 203(o) to mere nothingness.”

“The statutory compensation requirement to which § 203(o) provides an exception embraces the changing of clothes only when that conduct constitutes ‘an integral and indispensable part of the principle activities for which covered workmen are employed,’” the Court explained. And protective clothing is the only type of clothing that is integral and indispensable to the work of members of many occupations, such as factory workers, butchers, and longshoremen.

The Court also rejected the petitioners’ warning that a broad interpretation of clothes would cast too wide a net, encompassing everything from barrettes to bandages. But this is not a concern, the Court determined, because “[t]he statutory context makes clear that the ‘clothes’ referred to [in Section 203(o)] are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the § 203(o) exception.”

The Court examined the specific articles of clothing and protective gear at issue, and acknowledged that some of the gear worn by U.S. Steel’s employees did not satisfy its definition of clothes — namely, the workers’ earplugs, respirators, and eye protection. The Court determined that it would look at the activity “on the whole” to determine whether the time could fairly be characterized as “time spent in changing clothes or washing.” It held that the time spent donning and doffing safety glasses and earplugs was “minimal” in this case. The time was overwhelmingly spent in changing clothes and so was covered by the Section 203(o) exception. However, the Court cautioned that where an employee devotes a vast majority of the time in question to donning and doffing non-clothes equipment or items, the entire period would still be compensable.

Although the Supreme Court affirmed the decisions below, it did take issue with the de minimis rule — under which courts can declare short periods of time noncompensable under the rationale that the law does not take account of trifles — as applied to the FLSA. “We doubt that the de minimis doctrine can properly be applied to the present case,” the Court noted. “A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, 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” (emphasis in original). Thus, the Court appears to have opened to door to considering the broader question of whether the long-established de minimis rule will continue to apply to cases brought under the FLSA.

The Court’s unanimous decision provides some much-needed clarity for employers with unionized workforces on the issue of compensation for changing time. It also demonstrates the Court’s preference that issues such as compensation for clothes changing time be handled through the give-and-take of collective bargaining. On the other hand, the Court’s decision may weaken even further employers’ ability to use the de minimis defense in wage and hour litigation.


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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