Page 64 - MetalForming April 2014

You and The Law
By Douglas B.M. Ehlke
Clothes, Personal Protective Equipment or Special Gear?
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 inter- preted 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 bul- letin—changing clothes and washing—by adding the provi- sion 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
gained-away clause in their union-management contract. The Supreme Court agreed and broadly interpreted a lumped-together “changing clothes” for work clause in Sec- tion 203(o) as covering gear that normally would be consid- ered compensable in the nonunion workplace where the changing time aspect was not bargained away.
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 chang- ing 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) sug- gests anything other than the ordinary meaning of ‘clothing.’ And...there was no basis for the proposition that the unmod- ified 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
beginning or end of measured working express terms of or by the custom or practice under a bona fide collec- tive-bargaining agreement applica- ble to the particular employee. 63 Stat. 911, U.S.C. §203(o).
“Simply put, the
ty 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 com- pensable under the FLSA as wage and hour time, was non- compensable to these union workers because of a bar-
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
each workday, which was excluded from time during the week involved by the
“Compensability of time spent changing clothes is a subject appropriately committed to collective bargaining.”
statute provides that the compensabili-
62 MetalForming/April 2014
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