On January 27, 2014, the Supreme Court of the United States issued its opinion in Sandifer v. United States Steel Corp., No. 12-417, upholding judgment for the employer under section 203(o) of the Fair Labor Standards Act (FLSA) in a donning and doffing case affecting approximately 800 unionized plant workers who were required to wear protective gear by their employer.
Sandifer involved the applicability of the section 203(o) exemption to unionized employers. Section 203(o) provides:
Hours Worked.— In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. 29 U.S.C. Sec. 203(o)
At issue in Sandifer was a practice pursuant to the employer’s collective bargaining agreement with the Steelworkers union, which represented workers at the employer’s Gary, Indiana facility. Pursuant to the employer’s long-standing past practice and previous collective bargaining agreement language, the employer, U.S. Steel, did not pay its employees for the time spent changing into and out of their work gear, which included flame-retardant pants and jackets, work gloves, steel-enforced work boots, hard hats, safety glasses, earplugs, and a hood that covers the top of the head, chin, and neck.
The employer prevailed on the section 203(o) issue before both the trial court and the Seventh Circuit Court of Appeals, as both courts held that the workers’ claims for compensation under the FLSA for time spent changing into and out of their work gear were barred by section 203(o). The Supreme Court accepted the appeal to clarify the scope of section 203(o) as there was a split between various circuit courts of appeal on the proper application of section 203(o).
Before the Court, the workers asserted two primary arguments:
- the gear at issue was not “clothes” for purposes of section 203(o) but rather was specialized protective gear; and
- the workers were not “changing” their clothes pursuant to section 203(o) because they were only putting protective gear over clothes, not substituting their clothes for other clothing.
The Court, via an opinion penned by Justice Scalia, rejected both arguments and affirmed the rulings below. With respect to the workers’ “clothes” argument, the Court held that: “[t]he statutory context makes clear that the ‘clothes’ referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the §203(o) exception.” In rejecting the workers’ “changing” argument, the Court relied upon the statutory history of section 203(o) to hold that the term must be interpreted broadly given the collective bargaining relationship at issue in section 203(o) and to provide meaningful negotiation and predictability to that bargaining relationship.
With these definitions in mind, the Court turned to the facts. It held that the majority of the items donned and doffed by the workers fell in line with the definition of “clothes” at the time section 203(o) passed. Although, according to the Court, three particular items—glasses, earplugs, and a respirator—may not have been “clothes,” the Court held that it must examine the entire period of time workers spend “changing clothes” to determine “whether the period at issue, can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’” “If the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined that term,” the Court ruled, “the entire period qualifies, and the time spent putting on and off other items need not be subtracted.” Accordingly, changing into or out of several items that may not be “clothes” did not prevent the application of section 203(o).
Applying that standard, the Court then relied on the district court’s findings that (1) the time spent by the workers donning and doffing glasses and earplugs was minimal; and (2) respirators were not donned until necessary in the course of the workday, to hold that, looking at the facts in totality, the workers’ claims at issue were barred by section 203(o).
The practical impact of the Court’s decision is limited by the scope of section 203(o) itself, which covers only employers and employees with a collective bargaining agreement. Within the context of that bargaining relationship, the Court added some clarity to the application of section 203(o) by further defining the terms “changing” and “clothes.” However, the Court declined to adopt any bright-line tests for the application of section 203(o) settling instead on a balancing test that looks at the gear that workers take on and off and the time spent on such tasks “on the whole.” As with any balancing test, room for ambiguity and argument remains.
Given the additional clarity provided by the Court in Sandifer, now is a particularly appropriate time for unionized employers relying upon section 203(o) to reassess the applicability of that exemption.
Michael D. Ray is a shareholder in the Chicago office of Ogletree Deakins.