Hunton Employment & Labor Perspectives

Under Section 203(o) of the federal Fair Labor Standards Act (“FLSA”), an employee’s time spent “changing clothes” at the beginning or end of each workday is not compensable if such time is expressly excluded from compensable work time in a bona fide collective bargaining agreement or if there is a “custom or practice” of non-payment for such activities (or payment for a set amount of time).  On Monday, the Supreme Court clarified the definition of “changing clothes” for purposes of the FLSA, holding that a class of 800 unionized steelworkers, whose employment was covered by a collective bargaining agreement, were not entitled to compensation for time spent changing into and out of protective gear.

In Sandifer v. U.S. Steel Corp., the steelworkers argued that although their collective bargaining agreement excluded time spent changing clothes from compensable work time, the protective gear they are required to put on before going to work does not qualify as clothing under the FLSA.  The Court rejected this argument and instead relied on the accepted definition of the phrase “changing clothes” at the time of the provision’s enactment in 1949 to arrive at its decision.  The Court held that the term “changing” meant either substituting or altering, while the term “clothes” meant “items that are both designed and used to cover the body and are commonly regarded as articles of dress,” which includes protective clothing.  Accordingly, the Court found that most of the protective gear at issue—flame retardant jackets, vests, pants, and hoods, among other items—were clothes under Section 203(o).  The Court also found that while some of the of protective gear, such as earplugs, safety goggles, and respirators did not constitute clothing, the majority of the steelworkers’ time was spent donning and doffing items that did qualify as clothing.  Thus, the Court held, the entire changing period was not compensable.

The Court’s decision is a victory for employers operating under a bona fide collective bargaining agreement with unionized workforces who perform donning and doffing activities before and after shift.  If there is either an express contract term or “custom or practice” of nonpayment (or payment for a set amount of time) then the employer can avoid liability for a wide variety of items that employees put on and take off outside of productive time.  Even those items that may not meet the Court’s new, broader definition of clothes may not be compensable so long as most of the items donned and doffed fit within the definition, eliminating the burden of parsing clothes from non-clothes in the dressing process.