In recent years, numerous collective actions against employers have been brought under the Fair Labor Standards Act (“FLSA”) for what is commonly called a “donning and doffing claim” – an action for unpaid wages for time spent by employees changing into clothes/uniforms for work. In a recent decision, however, the Supreme Court unanimously clarified the rules for such actions by holding that time spent donning and doffing protective gear is not compensable by operation of § 203(o) of the FLSA.
The FLSA exempts employers from having to compensate employees for off-the-clock “time spent in changing clothes . . . at the beginning or end of each workday” if a collective bargaining agreement so provides. 29 U.S.C. § 203(o). In Sandifer et al. v. United States Steel Corp., 12-417 (Decided January 27, 2014), the petitioner filed a putative collective action under the FLSA seeking backpay for time spent donning and doffing pieces of protective gear (including fire-retardant jackets and pants, steel-toed boots, goggles, ear plugs, respirators, hard hats, and a flame-retardant head covering and “writslet”) that he asserted his employer required workers to wear due to the hazards at its steel plants. The employer in turn contended that the donning and doffing time, which would otherwise be compensable under the FLSA, was noncompensable under a provision of its collective bargaining agreement with petitioners’ union.
Whether petitioners’ donning and doffing qualified as “changing clothes” thus depended on the meaning of that statutory phrase. In an opinion by Justice Scalia, which was unanimous except as to a single footnote, the Court held that “clothes” for purposes of the FLSA, means “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court thus found no basis for petitioners’ proposition that the unmodified term “clothes” somehow omitted protective clothing. The Court’s interpretation, however, left room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices. Accordingly, with the exception of the safety goggles, ear plugs, and respirators, the Court held that all items worn by the petitioners constituted clothes. As for the time spent by petitioners putting on and off equipment (i.e., the safety goggles, ear plugs, and respirators), the Court concluded that when, as here, the vast majority of time is spent donning and doffing clothes, the entire period qualifies as time spent “changing clothes” even if workers also spent a small amount of time putting on other protective equipment. In so holding, the Court rejected the doctrine de minimis non curat lex (the law does not take account of trifles) invoked by many Courts of Appeals. Rather, the Court reasoned that the more appropriate way to proceed under § 203(o) is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes.”
The Court’s recent decision in Sandifer is likely to reduce the number of circumstances which would allow plaintiffs to succeed in donning and doffing lawsuits in the future. For more information on this topic, please contact Katherine Olson at 312-334-3444 or firstname.lastname@example.org.