Douglas Ehlke Douglas Ehlke
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Clothes, Personal Protective Equipment or Special Gear?

April 1, 2014


In a union collective-bargaining context, on January 27, 2014, the U.S. Supreme Court decided the case of Sandifer v. U.S. Steel Corp. It approved U.S. Steel’s withholding of pay from workers for their before-work clothes-changing time under a collective bargaining agreement. The court interpreted Section 203(o) of the Fair Labor Standards Act:

“In 1949, Congress amended the Fair Labor Standards Act to address the conduct discussed in that interpretive bulletin—changing clothes and washing—by adding the provision presently at issue:

“Hours worked—In determining for the purposes of (the minimum-wage and maximum-hours sections) of this title 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 the custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. 63 Stat. 911, U.S.C. §203(o).

“Simply put, the statute provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining.”

The steelworker-union employees also sought back pay for time spent between the locker rooms—where they don and doff their protective work gear—and their workstations, but that claim rejected in the court below was not argued to the Supreme Court.

The company argued (and won) an argument that their donning and doffing time, which would otherwise be compensable under the FLSA as wage and hour time, was noncompensable to these union workers because of a bargained-a clause in their union-management contract.  The Supreme Court agreed and broadly interpreted a lumped-together “changing clothes” for work clause in Section 203(o) as covering gear that normally would be considered compensable in the nonunion workplace where the changing time aspect was not bargained a.

What items of gear might be considered compensable?

“Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. Petitioners want to be paid for the time spent putting on and taking off those objects. In the aggregate, the amount of time—and thus money—involved is likely to be quite large. Because this donning-and-doffing time would otherwise be compensable under the Act, U.S. Steel’s contention of noncompensability stands or falls upon the validity of a provision of its collective-bargaining agreement with petitioners’ union, which says that this time is noncompensable. The validity of that provision depends, in turn, on the applicability of 29 U.S.C. §203(o) to the time at issue. That subsection allows parties to decide, as part of a collective-bargaining agreement, that “time spent in changing clothes… at the beginning or end of each workday” is noncompensable.”

The unanimous Supreme Court, speaking through Justice Antonin Scalia, used standard dictionaries to broadly define the changing-of-clothes period.

“Dictionaries from the era of [Section] 203(o)’s enactment indicate that ‘clothes’ denotes items that are designed (for) and used to cover the body and are commonly regarded as articles of dress. Nothing in the text or context of [Section] 203(o) suggests anything other than the ordinary meaning of ‘clothing.’ And…there was no basis for the proposition that the unmodified term ‘clothes’ somehow omits protective clothing.”

Then, the Supreme Court opinion recognized that some of the gear worn by the steelworkers did not satisfy the court’s definition of “clothes,” such as safety glasses, ear protectors and respirators. Nevertheless, the court ruled that the time workers spent putting on and taking off those non-clothes items did not need to be compensated for, because the “vast majority” of the disputed time was spent on donning and doffing “clothes” under Section 203(o). 

What does this mean for nonunion workplaces, since the case only focused on a union setting collective-bargaining-clause exemption? Numerous lawsuits relate to pay and overtime claims for donning and doffing safety equipment, not part of ordinary clothing. Those likely will continue to test what is “clothing” and what is “special workplace PPE gear or tools.” But, the U.S. Steel case opinion that broadly interprets clothing and focuses on the clothing “period,” as opposed to how long it takes a worker to put on each item of PPE or special gear, could shape future cases. 

Also, the high court rejected the de minimis doctrine (i.e. the law does not take into account trifles) used by the lower courts to avoid having to deduct the time employees spend on putting on and taking off non-clothes items from noncompensable clothes-changing time. 

In a somewhat vague part of opinion on this issue, Justice Scalia wrote:

“Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs and respirators, than there is to regard the minute or so necessary to put on a snood. If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work.”

Since the U.S. Department of Labor interprets that an act cannot be de minimis if it occurs regularly, the workplace wage-and-hour issue of what constitutes “clothing” is likely to continue.    MF
Industry-Related Terms: Case, Point
View Glossary of Metalforming Terms

Technologies: Safety

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