Supreme Court's Recent Decision on the Definition of "Changing Clothes" As Used in the FLSA Provides Valuable Insight to Both Union and Non-Union Employers

Volume 13, Issue 3
March 12, 2014

On January 27, 2014, in Sandifer v. United States Steel Corp., the U.S. Supreme Court construed § 203(o) of the Fair Labor Standards Act (FLSA), which permits parties to a collective bargaining agreement ("CBA") to exclude time employees spend changing clothes and washing up from "paid" time. The Court's unanimous ruling provides insight into the meaning of at least this particular part of the FLSA, a statute the Court noted is "all about trifles." It also provides important lessons for your company, even if it does not have a unionized workforce.

The jobs at issue in Sandifer require employees to put on at the start of their shifts, and remove at shift's end, twelve items of protective gear: flame-retardant jacket, pants, hood, hard hat, "snood" (a piece of clothing covering the head, neck and upper shoulder area), "wristlets" (detached shirt sleeves), work gloves, leggings, steel-toed boots, safety glasses, earplugs and respirator. For many years, the company's CBA with the Steelworkers' Union rendered these activities non-compensable. A number of employees challenged the legality of this CBA provision by suing U.S. Steel in a collective action under the FLSA.

In ruling for the employer, the Court undertook two exercises to find the time employees spent changing clothes was non-compensable. The first involved reviewing the history of the 1938 FLSA, noting that the terms "workweek" and "work," were undefined, but interpreted broadly by the courts to include all time when an employee is required to be on the employer's premises and encompassing certain preliminary activities, such as putting on aprons and overalls. These early court interpretations led to considerable litigation and an increase in costs to businesses. In response, Congress reformed the FLSA several times, including once in 1949, by adding the language found in 29 U.S.C. § 203(o) permitting the exclusion from "hours worked," any time spent in changing clothes or washing by the express terms of, or by custom or practice under, a CBA. The second consisted of the Court's analysis of the meanings of the terms "clothes" and "changing clothes," including an examination of the dictionary definitions and usage of those terms at the time § 203(o) was enacted. "Clothing," the Court held, is what one puts on the body to cover it and is commonly regarded as articles of dress. In turn, the Court found that "changing clothes" includes both substituting an item of clothing for another, as well as altering one's dress by adding additional items of work clothing on top of an employee's "street" clothes.

Of the twelve items of protective gear at issue, the Court found all to be clothes, except for three: safety glasses, earplugs and respirator. However, given that the vast majority of the period of time at issue was spent changing clothes or washing, the Court held that the entire period of time qualifies for the exclusion under § 203(o) such that the time spent putting on and taking off the other three items need not be counted as compensable time.

How does this ruling affect your company?

  • If your company has a unionized workforce and excludes time employees spend putting on and taking off clothing or protective gear pursuant to a custom, practice or express CBA provision, its scope and continuing validity should be evaluated in light of the holdings inSandifer.
  • If your company has a unionized workforce that puts on and takes off clothes or protective equipment, but no custom, practice or express CBA language provision permitting the exclusion of such time from hours worked, you need to consider whether the employee's particular activities are compensable under the FLSA and if it makes sense to negotiate an exclusion under § 203(o) of the FLSA.
  • For non-union employers (and unionized employers who have not negotiated an exclusion of washing and clothes-changing from hours worked) that do not pay employees for time spent putting on and taking off protective gear, the Sandifer decision is another reminder that a practice of this type is most likely unlawful as such activity is frequently deemed to be a "principal activity" under the FLSA and, thus, compensable.
  • The Sandifer decision only pertains to the FLSA's interpretation of time employees spend putting on and taking off clothes and protective gear; it does not dispose of related issues under analogous state/local wage and hour laws.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.