Get Paid for Getting Dressed? Supreme Court Clarifies “Changing Clothes” Under the FLSA

Updating a case we discussed last month, in Sandifer v. United States Steel Corp., No. 12-417 (January 27, 2014), the United States Supreme Court last week clarified the scope of Section 203(o) of the FLSA concerning which donning and doffing activities employers and employees can bargain to exclude from compensable time in collective bargaining agreements. In the process, the high Court also unanimously agreed upon which activities constitute “changing clothes” in regards to Section 203(o).

Although the FLSA generally requires employers to pay employees for time spent changing into required clothing on a worksite, Section 203(o) allows employers and employees to designate time spent changing clothes or washing at the beginning or end of a workday as non-compensable time if done so in a bona fide collective bargaining agreement. Over the past year, numerous employers have faced lawsuits claiming that time employees spent donning and doffing protective gear should be compensated since the gear should not be considered “clothing.” Many of these disputes centered on the definition of “clothing” under Section 203(o), as donning and doffing of items not considered “clothes” had to be compensated regardless of the existence of a CBA.

In Sandifer, steelworkers sued their employer, seeking compensation for time spent donning and doffing protective gear required for their hazardous jobs in the company’s steel plants. Specifically, the steelworkers identified twelve of the most common kinds of protective gear required: flame-retardant jacket, pair of pants and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. The employees claimed that because these pieces of protective gear were not clothes, they deserved regular pay for the time they spent donning and doffing the protective gear. The district court granted the employer summary judgment, holding that the petitioner’s donning and doffing constituted “changing clothes” under Section 203(o) and was therefore properly not compensated under the collective bargaining agreement. The Seventh Circuit affirmed and the employees appealed to the Supreme Court.

At oral arguments, the employees argued for a restricted meaning of “clothing,” proffering that anything an employee was required to wear that protected him against workplace hazards should not be considered “clothes” and therefore time spent donning and doffing them could not be bargained away. Conversely, the employer argued that “clothing” should include an entire work outfit including protective eyewear, hard hats, glasses, and ear plugs.

The Supreme Court took a middle path and held that “clothes,” for the purposes of Section 203(o), meant “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Justice Scalia, writing for the Court, explained that this was the ordinary meaning from dictionaries in circulation at the time the provision was first added to the FLSA. The Court then defined “changing clothes” to include time employees spend altering their dress in addition to time spent substituting clothes. The Court reasoned that whether an employee exchanges street clothes for work clothes is often a matter of purely personal choice and should not affect whether he or she is compensated for that time. Applying these definitions to the case at hand, the Court held that nine of the twelve protective pieces of gear the employees had raised were “clothing” (such as the jacket, hat, pants, and hood) while the safety glasses, earplugs, and respirator were not. However, because the vast majority of the time these employees spent dressing were devoted to clothing, that time was not compensable pursuant to Section 203(o).

Sandifer provides important guidance to employers on what items constitute “clothing” and whether donning and doffing time is compensable under Section 203(o). Employers should review their applicable donning and doffing policies to ensure compliance with this new Supreme Court guidance.