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No Pay for Donning/Doffing Safety Gear, Supreme Court Says

By Joanne Deschenaux  1/28/2014
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The time steelworkers spend putting on and taking off protective gear falls within the scope of a Fair Labor Standards Act (FLSA) provision denying compensation for “changing clothes,” the U.S. Supreme Court ruled Jan. 27, 2014 (Sandifer v. United States Steel Corp., No. 12-417).

Writing for a unanimous court, Justice Antonin Scalia upheld a 7th U.S. Circuit Court of Appeals decision that, under Section 203(o) of the FLSA, U.S. Steel did not have to pay its unionized employees for the time they spent before and after their shifts putting on and taking off safety clothing and related items.

Section 203(o) allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time “any time spent in changing clothes or washing at the beginning or end of each workday.”

Variety of Protective Items Worn

The lawsuit was brought by workers at U.S. Steel facilities in Illinois, Indiana and Michigan, most of whom work at the company’s flagship plant in Gary, Ind. Depending on their job, employees at these plants must wear a variety of protective clothing and equipment, including hard hats, safety glasses, earplugs, respirators, snoods (protective hoods that extend to the chest), flame-retardant hoods, flame-retardant jackets, flame-retardant pants, work gloves, “wristlets” (protective Kevlar sleeves that cover the lower arm and the opening of the work glove), steel-toed boots and “leggings” (protective Kevlar sleeves that cover the lower leg and the opening of the boot).

Sometimes the workers wear these items over their street clothes, but sometimes they remove their nonwork attire before donning their protective clothing and equipment. The workers put on many of these accessories in a locker room at the plant before heading to their workstation for their eight-hour shift. At the end of the shift the workers return to the locker room to remove their protective clothing and equipment.

Under collective bargaining agreements between U.S. Steel and the United Steelworkers, dating back to 1947, workers are paid only for the eight-hour shift at their workstation, not for time they spend donning and doffing protective clothing in the locker room.

Most Gear Constitutes “Clothes”

The high court found that most of the protective gear that U.S. Steel employees wear falls within the meaning of the term “clothes” in Section 203(o).

“Dictionaries from the era of Section 203(o)'s enactment indicates that ‘clothes’ denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress,” Scalia wrote. “Nothing in the text or context of Section 203(o) suggests anything other than the ordinary meaning of ‘clothes.’ ”

He added that the court saw “no basis for the proposition that the unmodified term ‘clothes’ somehow omits protective clothing.” Furthermore, the court defined the term “changing clothes” to mean substituting or altering one's dress.

Finally, the court ruled that, although items such as earplugs, glasses and respirators are not clothes, because the “vast majority” of the employees’ time is spent in donning and doffing items that do qualify as clothes under the court’s definition, the entire changing period qualifies as “time spent in changing clothes” under the statute.

Common Sense Ruling

“The Supreme Court took a common sense approach and applied the statute the way it was written and the way employers and unions for decades have understood that the statute operates,” according to Mark Batten, Proskauer’s class/collective action group co-head and a Boston-based partner at the management-side law firm.

If a unionized employer has either a provision in its collective bargaining agreement that it will not pay for time spent changing clothes or a practice of not paying for such time, “they can rest assured that they will not be called into court for doing what they always have done,” said Tammy McCutchen, a shareholder in law firm Littler Mendelson’s Washington, D.C., office and a former administrator of the Labor Department’s Wage & Hour Division.

“These lawsuits have become more common,” McCutchen explained. “Now there are no worries.”

She did caution, however, that nonunionized employers need to remember that this decision does not apply to them. “If you don’t have a union, you should be paying your employees for donning and doffing. Normally, this time is compensable.”

Further, she advised unionized employers to examine their collective bargaining agreements and, if there is no provision regarding donning and doffing, consider whether they want to add explicit language to exclude compensation for time spent putting on and taking off protective clothing and gear. “The next time you have a negotiation, this might be a good thing to get into a collective bargaining agreement.”

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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