Supreme Court Holds That Parties May Collectively Bargain Over Whether Time Spent Donning and Doffing Protective Gear Must Be Compensated
This Hot Topic was prepared by the ABA Section of Labor and Employment Law, Federal Labor Standards Legislation Committee, with the assistance of Lawrence Morales II of the Morales Law Firm in San Antonio, Texas, representing employees and employers in employment matters, Lawrence C. DiNardo of Jones Day in Chicago, Illinois, who argued the Sandifer v. U.S. Steel case to the U.S. Supreme Court on behalf of U.S. Steel, Thomas M. Feeley of Spivak Lipton in New York City, representing unions, and Aaron Kaufmann of Leonard Carder in Oakland, California, representing employees in wage and hour litigation.
The FLSA provides that "time spent changing clothes . . . at the beginning or end of each workday" is noncompensable if it is "excluded from measured working time" by the express terms of a bona fide collective bargaining agreement ("CBA"). See 29 U.S.C. § 203(o). In a unanimous decision released on January 27, 2014, the United States Supreme Court held that under § 203(o), "clothes" include any items (including protective gear) that are both designed and used to cover the body, and that are commonly regarded as articles of dress. The Court also held that the term "changing clothes" is not limited to substituting one article with another, but also includes placing articles over street clothes. Applying these definitions, the Court held that putting on and taking off a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood (a hood that covers the back and neck); wristlets (removable sleeves); work gloves; leggings; and metatarsal boots constitute "changing clothes" under § 203(o); whereas, putting on and taking off safety glasses, earplugs, and a respirator do not. Nevertheless, the Court affirmed summary judgment for the employer in its entirety because the entire period donning and doffing these items can, on the whole, be fairly characterized as "time spent in changing clothes."
Plaintiffs brought a collective action on behalf of 800 current and former steel workers seeking backpay under the FLSA for time spent donning and doffing pieces of protective gear that they asserted defendant United States Steel Corporation ("U.S. Steel") required them to wear because of hazards regularly encountered at steel plants. Specifically, plaintiffs alleged they should be compensated for putting on and taking off 12 items: a flame-retardant jacket, pair of pants, and hood; a hardhat; a "snood;" "wristlets;" work gloves; leggings; "metatarsal" boots; safety glasses; earplugs; and a respirator. U.S. Steel contended that this donning-and-doffing time, which would otherwise be compensable under the FLSA, is noncompensable under its CBA with plaintiffs' union. The validity of the relevant CBA provision turned on 29 U.S.C. § 203(o), which allows parties to collectively bargain over whether "time spent in changing clothes . . . at the beginning or end of each workday" must be compensated.
The District Court granted summary judgment to U.S. Steel, concluding plaintiffs' donning and doffing constituted "changing clothes" under § 203(o). The District Court also held that even if a hardhat, glasses, and earplugs are not "clothes," the time spent donning and doffing them was "de minimis" and hence noncompensable. The Seventh Circuit affirmed the District Court, and the Supreme Court granted certiorari. The Supreme Court affirmed the Seventh Circuit's judgment. In reaching its decision, the Court addressed three issues: (1) the definition of "clothes;" (2) the definition of "changing;" and (3) whether minimal time spent donning and doffing non-clothes must be deducted from noncompensable time.
First, regarding the definition of "clothes," plaintiffs argued that the word "clothes" is too indeterminate to be ascribed any general meaning but that, whatever it includes, it necessarily excludes items designed and used to protect against workplace hazards. U.S. Steel countered that "clothes" encompasses the entire outfit that one puts on to be ready for work. The Court rejected both parties' suggested definitions, and simply relied on Webster's definition of "clothes" at the time 29 U.S.C. § 203(o) was enacted: "items that are both designed and used to cover the body and are commonly regarded as articles of dress."
Second, with regard to the definition of "changing," plaintiffs argued that "changing" requires the substitution of one article with another (as in changing a diaper or a tire). Thus, according to plaintiffs, an employee putting protective gear over street clothes is not covered by § 203(o). The Court disagreed because the term "changing" carried two common meanings at the time § 203(o) was enacted: to substitute and to alter. Thus, "time spent in changing clothes" includes time spent in altering dress. Because putting protective gear over street clothes alters the employee's dress, it constitutes "time spent changing clothes" under § 203(o).
Applying its newly adopted definitions, the Court held that putting on and taking off a flame-retardant jacket, pair of pants, and hood; a hardhat; a "snood;" "wristlets;" work gloves; leggings; and "metatarsal" boots constitute "changing clothes" under § 203(o), and thus, can be excluded from compensable time as part of a bona fide CBA. However, the Court also held that earplugs, safety glasses, and a respirator are not "clothes" because they are not commonly regarded as articles of dress.
Finally, the Court addressed whether the time devoted to putting on and taking off earplugs, safety glasses, and respirators must be deducted from the noncompensable time. The Seventh Circuit concluded that such time was not compensable under the de minimis doctrine. However, the Supreme Court disagreed and held that the de minimis doctrine does not "fit comfortably" when determining what time is or is not compensable under § 203(o). Nevertheless, the Court concluded that plaintiffs' time spent donning and doffing earplugs, safety glasses, and respirators need not be deducted. In reaching this conclusion, the Court articulated a new standard of "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 vast 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' . . ., the entire period qualifies, and the time spent putting on and off other items need not be subtracted." Because the time plaintiffs spent putting on and off the non-clothes items was "minimal," the Court concluded that it did not need to be deducted.
By rejecting Petitioners' argument that work clothes cease to be clothes if they are made out of special materials and designed to protect the employee, the Court's analysis adopts a common sense and broad definition that should apply without regard to whether the clothes are specialized or uncommon. Moreover, although the Court's decision stopped short of holding that "clothes" includes every part of a work outfit, it produced a similar practical result by accepting U.S. Steel's related argument that § 203(o) allows collective bargaining regarding the entire period of time spent in changing clothes. Thus, in most workplaces, it will not matter whether certain items such as a hardhat or safety glasses are considered clothes, because the time employees spend "donning and doffing" clothes, whether specialized or not, will, on the whole, be time spent in changing clothes.
The Court's decision represents a win for employers, unions, and employees alike, because it recognizes that negotiations over compensation for the time spent changing into and out of work outfits is best left to collective bargaining. Unions are entirely capable of representing their employees on this issue, and frequently seek alternative benefits as a substitute for compensation for donning and doffing time. That allows employees to prepare for work without being on the clock, and allows employers to avoid the monitoring costs that would be required if such time were compensated. That is precisely what Congress intended when it enacted § 203(o).
As the Court notes, in recent years the Department of Labor has wavered over the precise meaning of "clothes" under § 203(o), including whether "changing clothes" contemplates the donning and doffing of protective equipment. See, e.g., United States Dep't of Labor, Wage and Hour Opinion Letter FLSA2010-2, 2010 WL 2468195. In adopting an expanded—if "imprecise and colloquial"—definition of "clothes," the Court has given some clarity to this issue.
However, the impact of the Court's opinion will be limited, as the express scope of § 203(o) is limited to circumstances where "the express terms of or by custom or practice under a bona fide collective-bargaining agreement" establish that donning and doffing are non-compensable. Notably, the plaintiffs here did not appeal the lower courts' finding that the § 203(o) activities were non-compensable under collective bargaining agreement. Thus, the opinion does not address the underlying agreement's exclusion of such compensation, and the Court provides no new guidance for contract interpretation. Accordingly, while there could be further litigation over the issue, particularly where the existing custom or practice under a collective bargaining agreement is ambiguous, the compensability of pre- and post-shift donning and doffing remains first and foremost a matter for collective bargaining.
The Supreme Court's adoption of the "ordinary meaning" of "clothes" for 203(o) purposes follows the trend established in the Circuit Courts, with six of them previously ruling that the plain meaning of "clothes" included standard safety gear. Consequently, the Sandifer decision is unlikely to change the outcome in much on-going litigation.
While the Supreme Court's definition of "clothes" is certainly more expansive than plaintiffs' attorneys wished for, the Court did emphasize its definition does have its limits, noting: "our definition does not embrace the view, adopted by some Courts of Appeals, that 'clothes' means essentially anything worn on the body—including accessories, tools and so forth." Further, the Court warned that there may be instances where the time donning and doffing a work outfit is predominated by the handling of tools and accessories that do not meet the definition of "clothes." In that instance, under the Supreme Court's holistic view of what constitutes "changing clothes," the entire time spent donning and doffing the outfit—including "clothes" and non-clothes—falls outside of the 3(o) exclusion. Thus claims will continue to be litigated where a significant portion of the changing time is devoted to equipment that does not meet the Supreme Court's ordinary meaning of "clothes."
Finally the Court's elliptical discussion of the de minimis defense doctrine is likely to spawn more debate about when and how that doctrine is applied. While the Court in Sandifer clearly held that the de minimis doctrine is inapplicable to its holistic approach to what constitutes "changing clothes" for 3(o) purposes, its comments about the doctrine raises other questions. In particularly, the Court's observation in a footnote that the Labor Department's regulation on the de minimis standard is "stricter" than what it expressed in Anderson v. Mt. Clemens Pottery Co., 328 U.S.680 (1946), is likely to embolden defendants to seek a more expansive application of the de minimis defense.