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Supreme Court Upholds CBA Provision that Time Spent Changing Clothes is Not Compensable Under the FLSA's Collective Bargaining Exception

February 21, 2014

By J. Chris Duckworth

LABOR LAW UPDATE

On January 27, 2014, a unanimous United States Supreme Court held that employers and unions may agree that time workers spend putting on and taking off clothing, including protective clothing, is unpaid without violating the Fair Labor Standards Act (FLSA).

 

In Sandifer v. United States Steel Corporation, a group of employees at U.S. Steel’s Gary, Indiana plant sued their employer seeking backpay under the FLSA for the time they spent donning and doffing protective clothing and gear. While the FLSA normally requires that employers pay employees for time spent donning and doffing clothing required for the job, the definition of “hours worked” allows “any time spent in changing clothes or washing at the beginning or end of each workday” to be excluded as non-compensable under the terms of a collective bargaining agreement. See 29 USC §203(o). US Steel defended itself by arguing that the complaining employees worked under a CBA that specifically excluded time spent “changing clothes” from compensable work time. 

Although they acknowledged that the CBA excluded donning and doffing time from work hours, the employees countered that the “changing clothes” exception should not apply because the time at issue was spent putting on and taking off protective gear, which is different than changing clothes, the subject of the exception. Although they acknowledged that the CBA excluded donning and doffing time from work hours, the employees countered that the “changing clothes” exception should not apply because the time at issue was spent putting on and taking off protective gear, which is different than changing clothes, the subject of the exception.

The Supreme Court disagreed with the employees and adopted a broad definition of “clothes.” In the Court’s view, “clothes” includes all but three of the items of required protective gear (earplugs, respirators and safety glasses were protective equipment) on the employees’ list; the rest of the protective gear fit in the clothes category. Thus, given the CBA provision, time spent donning and doffing this protective gear was not compensable. 

Moreover, with respect to the three non-clothing pieces of protective equipment, the Court applied a practical test to evaluate the compensability of the donning and doffing time. Specifically, the Court reasoned that if the donning and doffing time on the whole can be considered “time spent changing clothes or washing,” then the portion of that time spent
putting on and taking off non-clothing protective equipment is still not compensable. The Court explained that it did not want to “convert federal judges into time-study professionals.” Applying this to the employees’ claims, the Court found their time spent putting on and taking off earplugs and safety glasses minimal compared to the total time spent donning and doffing the protective clothing. For that reason, the CBA provision excluding time spent changing clothes from hours worked applied. 

The Court rejected a number of arguments the employees advanced, including their claim that they were not “changing clothes” when putting on protective gear over their street clothes. Although changing clothes normally means substitution, the Court reasoned that it also can mean altering what one is wearing. Since the employees were altering their outfits by donning protective gear over their street clothes, they were still changing clothes and the CBA provision excluding time spent changing clothes from hours worked still applied.

Practical Considerations

We have four practical observations in the wake of Sandifer.


First, the holding is a victory for every unionized employer that has bargained its CBA to exclude changing clothes, including protective clothing, from compensable time. The Court makes it clear that the FLSA exception from working hours applies in that situation.


Second, the Court’s “practical” test for evaluating compensability when there is donning and doffing of both clothing and non-clothing pieces of protective equipment makes it clear that all such time may be compensable, even with a CBA provision. The Court said:


“If an employee devotes the vast majority of time in question to putting on and
off equipment or other non-clothes items (perhaps a diver’s suit and tank) the
entire period would not qualify as ‘time spent in changing clothes’ under §203(o),
even if some clothes items were donned and doffed as well.”


Employers should compare the amount of time their employees spend donning and doffing clothing (including protective gear) versus non-clothing pieces of protective equipment. The practical test comparison exercise is particularly relevant to public sector employers with unionized workforces who require their employees to dress at work. For example, those employing police officers should carefully balance the time spent donning and doffing uniforms against the time spent donning and doffing duty belts, ribbons, pins, and badges. Alternatively, those employing police officers could avoid having to engage in this analysis by giving officers the option of dressing at home; the employer would not be requiring officers to dress at work and officers choosing to do so would be doing it for their own benefit.

Third, the Sandifer ruling does not change the landscape for non-union employers. The Court left undisturbed its ruling in IBP, Inc. v. Alvarez that donning and doffing protective clothing required for a job is compensable unless the time spent is considered de minimus.


Fourth, employers should also note that Sandifer only applies in context of the FLSA (federal law) and does not excuse compliance with state wage and hour laws. Bullard Law will continue to monitor FLSA compliance and enforcement developments.


Please feel free to contact us anytime with any questions about the FLSA or any other labor, employment, or benefits issues of interest or concern to you.

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