On January 27, the United States Supreme Court issued its opinion finding in favor of U.S. Steel. Clifton Sandifer and others filed a collective (class) action against U.S. Steel under the Fair Labor Standards Act (FLSA) seeking backpay for the time they spent “donning and doffing” required protective clothing. They wanted to be paid for the time spent before work putting on a flame-retardant jacket, a pair of pants, and a hood; a hardhat; a “snood;” “wristlets;” work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. They also wanted to be paid for the time they spent at the end of the workday removing these items.

The parties agreed this time would ordinarily be compensable under the FLSA. However, there is a provision in the FLSA which might make that time not compensable. It reads:

In determining. . . the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

FLSA, Section 203(o). This allows the employer and the union – through collective bargaining – to decide whether changing clothes before or at the end of a workday is compensable time. U.S. Steel had such a collective bargaining agreement covering the workers who brought this claim. So the question for the Court was whether Mr. Sandifer’s putting on and taking off the various items was “changing clothes.”

After much ado over the definition of both “changing” and “clothes”, the Court held that putting on and taking off the flame-retardant jacket, pants, and hood; the hardhat; snood; wristlets; work gloves; leggings; and metatarsal boots fell within the definition of changing clothes. Time spent on these activities was not compensable due to the language in the union contract.

But, time spent putting on and taking off the safety glasses and ear plugs did not constitute “changing clothes” and was not covered by the U.S. Steel union contract’s provision. So, that time would be compensable under the normal provisions of the FLSA. (The Court found that the respirator was used only during the work day and therefore was not at issue.)

The Court was sensitive to the practical effect of such a decision. Would the lower (trial) courts be left to parse between the 2 minutes it took to put on boots and wristlets versus the 28 seconds to put on glasses and ear plugs? Who would time the activities? The Court came up with an integrated approach by which the trial courts could answer one question.

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.” If an employee devotes the majority of the 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. But if the vast majority of the time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.

In the case of U.S. Steel, the Court found that the time spent with safety glasses and ear plugs was minimal. The majority of the time would be spent “changing clothes.” So, that falls within § 203(o) and the U.S. Steel union contract controls making that time not compensable. Under the Court’s integrated approach, the period of time on the whole would not be compensable.

By Kristen L. Brightmire, kbrightmire@dsda.com