U.S. Supreme Court Clarifies Meaning of Compensable Donning and Doffing

On January 27, 2014, the United States Supreme Court clarified the meaning of “changing clothes” under the Fair Labor Standards Act’s (“FLSA”) donning and doffing protections.

In Sandifer v. U.S. Steel Corporation, 571 U.S. ___ (2014), the Court was faced with a challenge from a putative class of current and former steelworkers at U.S. Steel’s Gary, Indiana plant.  The workers were demanding back-pay for time spent donning and doffing (taking on and off) 12 items of protective gear as part of their job, including a flame-retardant jacket, pants, hood, hardhat, snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs and a respirator.  While the time spent engaging in this activity is normally compensable under the FLSA, the collective bargaining agreement between the workers’ union and the company provided that it was not.  The validity of the bargaining agreement’s preclusion of such typically compensable time hinged on 29 U.S.C. §203(o), which allows such agreements to determine whether “time spent in changing clothes . . . at the beginning or end of each workday” is compensable or noncompensable.  The question before the Court was whether the workers’ taking on and off their protective gear constituted “changing clothes,” as defined in the FLSA, or whether such activities fell outside the scope of §203(o).

Affirming both the District Court and 7^th Circuit Court of Appeals, the Supreme Court held that “changing clothes” included the donning and doffing of the steelworkers’ protective gear, and the union’s bargaining agreement precluded any right to back-pay under §203(o).  In arriving at this conclusion, the Court focused its analysis on the definitions for “changing” and “clothes” at the time of the FLSA’s 1949 amendment of §203(o). 

The common dictionary definition of “clothes” at that time encompassed a broad range of items designed and used to cover the body.  Though leaving much room for latitude, the Court split the difference between the two definitions proffered by the workers (i.e., narrow in scope and exclusive of items worn to protect against workplace hazards) and U.S. Steel (i.e., broadly including anything worn on the body).  The Court adopted a middle-ground, flexible definition of “clothes” that allows room to distinguish between clothes and wearable, non-clothing items.  The Court found this preferable rather than demanding the more rigid construction of clothes proposed by either side, thereby leaving future decisions on this question to be resolved on a fact-specific basis.

In defining “changing”, the Court again looked to the historical definitions of the word at the time of §203(o)’s enactment.  At that time, “changing” included both “substituting” and “altering”.  In adopting this definition that includes “substituting” (i.e., changing in and out of) as well as “altering” (i.e., layering work clothes over “street clothes”), the Court successfully warded against an employee being able to opt in or out of §203(o) coverage at random.  By way of example, the Court pointed to the situation where an employee’s compensable donning and doffing time would depend on whether he/she took off the shirt they wore to work in a given day. 

Under these definitions of “changing” and “clothes,” 9 of the 12 items of protective gear (all except glasses, earplugs and the respirator), were deemed to fall within §203(o)’s “changing clothes” requirements.  The statute therefore covered U.S. Steel’s collective bargaining agreement, which precluded compensation time for the donning and doffing of these items.

With respect to the other 3, non-“clothing” items of protective gear, the Court rejected use of the de minimis doctrine, which would have called upon the Court (and federal judges at the district and circuit court levels) to act as “time-study professionals” by separating minute-by-minute time devoted to changing in and out of a particular item of protective gear.  Rather, looking at the “vast majority” of the activity, the Court decided that this question must be decided more practically based upon whether the particular donning and doffing on the whole is spent “changing clothes”.  In Sandifer, the time spent donning and doffing the 9 “clothing” items overrode any time spent with the glasses, earplugs and respirators, and the Court determined that the collective bargaining agreement precluded any claim for back-pay.

The Sandifer decision provides new clarity for employers on how courts will assess what donning and doffing activities are compensable.  While leaving room for interpretation as to what specific items may be excluded from compensation under a collective bargaining agreement consistent with §203(o), the analysis employed by the Supreme Court is anticipated to have a far-reaching impact on future applications of the law.