The U.S. Supreme Court recently decided the meaning of the phrase “changing clothes” in 29 U.S.C. §203(o) of the Fair Labor Standards Act (FSLA). Section 203(o) excludes from hours worked time spent “changing clothes” if that time is excluded under the terms of or custom or practice under a collective bargaining agreement.
The take away is that unions and their members must be vigilant in continuing to push for pay for time spent donning and doffing equipment and other non-clothes items based on the Court’s ruling that excludes these items from “changing clothes.”
The Court held in Sandifer v. U.S. Steel Corporation that the time spent “changing clothes” at the beginning or end of each workday covers items that are both: (1) designed and used to cover the body and (2) commonly regarded as articles of clothing. Based on this ruling, a unionized worker’s time spent donning and doffing items integral and indispensable to the job can be excluded from work time if those items are designed and used to cover the body and commonly regarded as articles of clothing when the governing bargaining agreement expressly excludes the time from hours of work or does so by custom or practice.
In Sandifer, the Court decided that steelworkers’ flame-retardant jackets, pants, hoods, hardhats, work gloves leggings, and steel-toed boots constitute clothes and therefore, the time spent donning and doffing them was excludable under the terms of their bargaining agreement. On the other hand, the Court held that glasses, earplugs, and respirators did not satisfy both elements of what constitutes clothes and therefore could not be excluded from compensation by the collective bargaining agreement.
The Sandifer Court recognized that the de minimis doctrine does not effectively limit payment for small amounts of time spent donning and doffing equipment and other non-clothes items. It therefore attempted to limit compensable donning and doffing time by arguing that it should be paid only when the time is on the whole spent in putting on equipment and other non-clothes items which cannot be excluded from work time by a bargaining agreement. The Court argued that if the vast majority of the worker’s time is devoted to donning and doffing “clothes” the entire period would constitute “changing clothes” and thus be excludable from work even if the worker also dons and doffs some equipment and non-clothes items.
The proposed is contrary to longstanding precedent governing compensation for principal activities under the FLSA, and unions should challenge employers who assert such standard.