On January 27, in a very limited ruling, the Supreme Court of the United States held that an employer was not required to pay union employees for the time it takes them to put on and take off protective gear when their collective bargaining agreement did not provide for compensation for that time. After analyzing whether the workers’ protective gear qualifies as “clothes,” the Court held that, under the union contract between the parties, the time that the employees spent donning and doffing their protective gear was not compensable under section 203(o) of the Fair Labor Standards Act (FLSA). The decision, which was unanimous (except that Justice Sotomayor did not join in footnote 7), affirms the Seventh Circuit Court of Appeals’ 2012 ruling and reinforces employers’ ability to negotiate the compensability of such activities through a collective bargaining agreement. For nonunion employers, this ruling does not change the donning and doffing rules under the FLSA. Sandifer v. United States Steel Corp., No. 12-417, Supreme Court of the United States (January 27, 2014).
Factual Background
United States Steel Corporation requires the steelworkers in its Gary, Indiana plant to wear gear to protect themselves from hazards at the plant. The gear includes flame-retardant pants and jackets, work gloves, steel-enforced work boots, hard hats, safety glasses, earplugs, and a hood that covers the top of the head, chin, and neck. The collective bargaining agreement (CBA) between U.S. Steel and the workers’ union does not require compensation for the time spent changing into and out of their gear.
Nevertheless, approximately 800 former and current employees filed suit seeking back pay for the time that they had spent donning and doffing their protective gear. U.S. Steel argued that even if that time would otherwise be compensable under the FLSA, it was not compensable under the parties’ union contract. The trial court sided with U.S. Steel and the Seventh Circuit agreed that the changing time was not compensable. The Supreme Court of the United States agreed to hear the case to decide what constitutes “changing clothes” within the meaning of section 203(o).
Legal Analysis
Justice Scalia initially noted that section 203(o) allows parties to decide, as part of a collective bargaining agreement, whether the “time spent in changing clothes . . . at the beginning or end of each workday” is compensable. The workers claimed that section 203(o) does not apply to their case because the protective gear that they must wear while on the job is not “clothes” as the term is used in the statute. After examining the meaning and use of the word “clothes” and the historical context in which section 203(o) was passed, the majority opinion rejected this argument. The Court ruled, “The statutory context makes clear that the ‘clothes’ referred to 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 next rejected the workers’ argument that the word “changing” implies substitution and, since they were not substituting their clothes for their protective gear, they were not “changing clothes” under section 203(o). In rejecting this argument, Justice Scalia reiterated that “The object of §203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation. There can be little predictability, and hence little meaningful negotiation, if ‘changing’ means only ‘substituting.’”
The Court next applied these definitions to the facts of the case and found that all but three of the items worn by the workers satisfied its standards. Donning and doffing the three remaining pieces of gear—glasses, earplugs, and a respirator—do not qualify as “changing clothes,” the Court found. The Court thus considered whether the time devoted to putting on and removing these items must be deducted from the noncompensable time. As one might expect, the Court was reluctant to conclude that section 203(o) intended “to convert federal judges into time-study professionals” who are “assigned the task of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities.”
As a result, the Court settled on the following standard: “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 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 this case, the Court relied on the trial court’s finding that the time workers spent on donning glasses and earplugs was minimal while the respirators were not actually put on until needed during the course of the workday, and therefore, were not at issue.
Thus, the Court ruled that the workers’ donning and doffing of protective gear qualified as “changing clothes” under section 203(o) and was not compensable.
Practical Impact
According to a shareholder in the Indianapolis office of Ogletree Deakins, “This case is an important win for unionized employers that have in recent years been plagued by collective actions despite having bargained with their employees’ representatives over the compensability of donning and doffing protective clothing and washing time.
“The Supreme Court’s decision is pragmatic. In defining the scope of the section 203(o) exclusion, the Court rejected fine lines between the functions (protective or not) of items worn on the body: gloves are gloves, whether made of cotton or chain mesh; hard hats and baseball caps are all simply hats. While accepting the argument that ‘equipment,’ such as glasses and earplugs, are not ‘clothes’ within the meaning of section 203(o), the Court also refused to require parsing of time between donning protective ‘clothing’ and donning protective ‘equipment.’ Instead, it embraced a practical primary activity test. If most of the time spent donning or doffing involves protective clothing, the inquiry is at an end.
“Unfortunately, Sandifer offers little solace for non-union employers and those unionized employers that have not negotiated an exclusion of washing and clothes-changing from compensable time. The Supreme Court assumed that putting on protective clothing required for the job is compensable time except when carved out by section 203(o). Moreover, the Supreme Court rejected the notion that any of the time spent on activities of this nature can be disregarded because it is ‘de minimis.’
“As noted by the Court in footnote 5, an issue of more global importance that might have been decided in Sandifer—the deference due to evolving agency interpretations—was avoided by the government’s decision not to argue that its current regulation was entitled to deference.”
