Under the Fair Labor Standards Act (“FLSA”), employers are required to compensate employees for time spent changing clothes before the workday has started and after the workday has ended if doing so is integral and indispensable to the employees’ employment. But the FLSA also states that employers and unions may mutually agree that time spent changing clothes is not compensable. 29 U.S.C. § 203(o). These conflicting rules raise an important question. Can employers and unions mutually agree that employees will not be compensated for time spent putting on and taking off clothing that is necessary to perform their job? The Supreme Court of the United States recently announced that the answer to that question is yes. Unions and employers may mutually agree that employees will not be compensated for time spent changing clothes even if that clothing is necessary to safely perform their job. Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241 (U.S. Jan. 27, 2014).
In Sandifer, the collective bargaining agreement stated that time spent changing clothes was not compensable. Steelworkers have to wear about twelve pieces of personal protective equipment (“PPE”) to safely perform their jobs (i.e. flame retardant jacket, special pants, hood, hard hat, snood, wristlets, work gloves, metatarsal boots, safety glasses, earplugs and a respirator). A class of former and current steelworkers believed that the practice of not compensating them for time spent putting on protective gear was unlawful and filed a collective action against United States Steel. They argued that time spent donning and doffing protective gear was compensable under the FLSA’s general provisions and that the exception in § 203(o) should not apply to protective gear that is necessary to safely work in a steel mill.
But the Supreme Court unanimously held that there was no basis for plaintiffs’ “proposition that the unmodified term ‘clothes’ somehow omits protective clothing.” Therefore, unionized employers do not have to compensate employees for the time they spend putting on and taking off protective gear if the collective bargaining agreement states that time spent changing clothes is not compensable. However, employers must also be aware of the fact that time spent changing into and out of non-clothes is compensable even if the collective bargaining agreement states otherwise. For example, the time spent donning and doffing non-clothes, such as a diver’s suit or oxygen tank, is not covered by section 203(o). Therefore, employees must be compensated for time spent putting on and taking off such items.
To avoid the “morass of difficult, fact-specific determinations” that necessarily arise from this holding, the Supreme Court instituted a totality of the circumstances test to govern whether a particular time period involves non-compensable changing of clothes or compensable changing of non-clothes. “The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent changing clothes or washing’ . . . If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items . . . the entire period would not qualify . . . But if the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined the term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”
1. Employers and unions may agree through collective bargaining that employees will not be compensated for time spent changing clothes.
2. Use clear and specific draftsmanship in the collective bargaining agreement to avoid the intractable debate over whether “on the whole” a changing period can be characterized as time spent changing into and out of clothes or changing into and out of non-clothes.