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Time spent donning and doffing protective clothes not compensable, High Court holds, rejecting use of de minimis standard

January 27th, 2014  |  Lisa Milam

By Lisa Milam-Perez, J.D.

The time spent by production workers donning and doffing their protective gear was not compensable under the FLSA, a unanimous Supreme Court ruled on Monday, affirming the Seventh Circuit in a decision authored by Justice Scalia. In Sandifer v U.S. Steel Corp, the High Court clarified the scope and definition of “clothes” and “changing” within the meaning of Section 203(o) of the Act, which provides that donning and doffing activities may be exempt from compensable time under the terms of, or custom or practice arising under, a collective bargaining agreement. The Court also set forth what it deemed a more workable approach to resolving whether time spent donning and doffing protective gear was compensable, eschewing the de minimis doctrine used by some circuits as ill-suited to a statutory provision that is itself “all about trifles.”

Wage dispute. Hourly workers at U.S. Steel’s Gary Works plant filed an FLSA collective action alleging they were unlawfully denied pay for the time they spent putting on and taking off various required work clothes and protective gear at the start and end of their work day. The CBA between U.S. Steel and the union did not require compensation for such time and, dating as far back as 1947, their contracts had never had such a requirement. The Seventh Circuit held that, because the applicable CBA did not require compensation for donning and doffing activities, U.S. Steel did not have to pay workers for such time.

Had the clothes-changing time not been rendered noncompensable pursuant to Sec. 203(o), it would have been a “principal activity,” and thus compensable. The employees had argued to no avail that this provision was inapplicable, though, because their clothes were not “clothes” within the meaning of the Act, but rather safety equipment. However, the appeals court held the required work gear was both clothing and personal protective equipment, reasoning that it would be absurd to exclude all work clothing that had a protective function from the reach of this provision.

The employees petitioned the Supreme Court, contending that the decision conflicted with the First Circuit’s holding in Tum v. Barber Foods, Inc and, more importantly, with the Supreme Court’s decision in IBP, Inc v. Alvarez. The Court agreed to resolve the circuit split over the scope of Sec. 203(o) and found the protective gear at issue qualified as “clothes,” and donning and doffing the gear constituted “changing clothes” within the meaning of the statutory provision.

“Clothes,” defined. Applying the ordinary, common meaning of the term “clothes” as defined in dictionaries from the era in which Sec. 203(o) was enacted, the Supreme Court reasoned there was no basis for interpreting the term in any other manner so as to omit protective clothing from its reach. “Clothes” were defined as “items that are both designed and used to cover the body and are commonly regarded as articles of dress,” and “that is what we hold to be the meaning of the word” for purposes of the statute, the Court wrote. It rejected the employees’ assertion that the word was too indeterminate to attribute a general meaning to the term.

Nor was the Court swayed by the employees’ additional plea that, regardless of what that term “clothes” did include, it necessarily excluded items designed to protect employees from workplace hazards. The distinction they urged would potentially nullify Sec. 203(o), the Court noted. The compensation requirement, to which this provision is merely an exception, applies to time spent changing clothes only when those tasks constitute “an integral and indispensable part of the principal activities for which covered workmen are employed.” As the Court pointed out, though, “protective gear is the only clothing that is integral and indispensable to the work of factory workers, butchers, longshoremen, and a host of other occupations.” Were the employees’ definition of “clothes” to apply, Sec. 203(o) would cover only “costumes” worn by workers such as waiters, doormen, and train conductors.

The Court didn’t sweat the “fanciful hypotheticals” presented by the employees in their effort to show that a too-generic definition of “clothes” would “cast a net so vast as to capture all manner of marginal things — from bandoliers to barrettes to bandages.” As the statutory context made clear, the “clothes” referred to are those that are integral to the performance of one’s job, and the items referenced by the employees didn’t fit the bill. (On the other hand, the interpretation put forth by the employer, which would encompass in the exception “the entire outfit that one puts on to be ready for work,” might be “more readily administrable,” the Court said, but was even more lacking in textual foundation than the employees’ proposed definition.)

Even as to those items that can be regarded as integral to job performance, though, the Court noted that its 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. The construction we adopt today is considerably more contained,” and affords a distinction between clothes and other “wearable items that are not clothes, such as some equipment and devices.”

The employees pointed to 12 specific items they argued were “protective gear” and thus not covered under Sec. 203(o), including a flame-retardant jacket, a hard hat, and other items, all of which they wanted to be paid to don and doff. But only three items — safety glasses, earplugs, and a respirator — were not “clothes” as defined by the Court above.

“Changing,” ill-defined. Disagreeing with the employees’ contention that the normal meaning of “changing clothes” would not encompass the act of putting protective gear on over one’s street clothes, the Court looked to the purpose underlying Sec. 203(o): “to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation.” If changing only meant “substituting,” as the employees suggested, it would afford little predictability — and thus little opportunity for meaningful bargaining.

“Whether one actually exchanges street clothes for work clothes or simply layers garments atop one another after arriving on the job site is often a matter of purely personal choice,” the Court noted. “That choice may be influenced by such happenstances and vagaries as what month it is, what styles are in vogue, what time the employee wakes up, what mode of transportation he uses, and so on.” The Court declined to read the provision as allowing employees “to opt into or out of its coverage at random or at will.”

De minimis standard disfavored. The more salient question, at any rate, was whether the time spent donning and removing the few items of non-clothes protective gear had to be deducted from the otherwise-noncompensable donning and doffing time. Some circuit courts have invoked the de minimis standard to address the matter, but in the Supreme Court’s view, the doctrine was ill-suited to a statute that is itself “all about trifles” such as “the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs.”

A more appropriate way to proceed, according to the Court, was for courts to ask whether the period at issue can, “on the whole,” be fairly characterized as “time spent in changing clothes or washing.” If so, then the entire donning and doffing period qualifies under Sec. 203(o) and the time spent putting on and removing protective items “need not be subtracted.” But if an employee spends the great majority of this time putting on and removing equipment or other non-clothes items, then the entire period would not fall under the exception — even if some clothes items were donned and doffed during this time as well.

“[I]t is most unlikely Congress meant Sec. 203(o) to convert federal judges into time-study professionals,” the Court reasoned. “That is especially so since the consequence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining.”