Wage Hour Report

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When the nine justices of the Supreme Court received their lifetime appointments to the nation's highest court, they probably did not envision themselves digging through 60-year-old dictionaries for definitions of prosaic terms like "clothes" and "clothes changing," and comparing those terms to "spending the day skiing." Yet, the Justices found themselves doing just that in Sandifer v. U.S. Steel Corp. in order to give some practical advice to employers.

The case concerns Section 203(o) of the Fair Labor Standards Act, added to the statute in 1949. That Section provides that "time spent in changing clothes or washing at the beginning or end of each workday" could be excluded from compensable work time by the express terms of a collective-bargaining agreement. Since 1949, courts, employers, and employees have struggled with the term "changing clothes" in determining which "donning and doffing" time was excludable under Section 203(o). Much of the litigation has centered on whether work-related protective gear qualifies as "clothes."

Sandifer was brought by employees of a U.S. Steel plant in northern Indiana who sought back pay for the time they spent doffing and donning 12 pieces of clothing and protective gear: a flame-retardant jacket, a pair of pants, a hood, a hard hat, a "snood," "wristlets," work gloves, leggings, "metatarsal" boots, safety glasses, earplugs, and a respirator. The collective bargaining agreement between U.S. Steel and the union representing the employee-plaintiffs stated that the time spent "changing clothes" was not compensable. The validity of that contract provision depends upon whether the items in question are considered "clothing" under Section 203(o). The Court's nearly-unanimous decision is summarized below.

What did Congress mean by "clothes" in Section 203(o)?

The plaintiffs argued that items used to protect against workplace hazards could not be "clothes," but the Court disagreed: "We see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing." The Court also discarded U.S. Steel's contention that "clothes encompasses the entire outfit that one puts on to be ready for work," holding instead that accessories and tools worn on the body are not "clothes." The Court looked to dictionaries from 1933 and 1950 to determine that the term "clothes" "denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress." (Emphasis added.)

What did Congress mean by "clothes changing" in Section 203(o)?

The plaintiffs asserted that "changing" connoted "substitution" of one item for another rather than merely putting something on without taking anything off. For example, the plaintiffs argued, one would not normally say he "changed clothes" when he "put on" an overcoat. The Court agreed that the normal meaning of "changing clothes" connotes substitution, but found that Section 203(o) was not that restrictive, finding instead that the statute included "time spent in altering dress." (Emphasis added.)

Applying the definitions of "clothes" and "changing"

The Court applied its new definitions to hold that nine of the 12 items at the U.S. Steel plant were "clothes" because "they are both designed and used to cover the body and are commonly regarded as articles of dress." The Court wrote,

A flame-retardant jacket, a pair of pants, a hood and work gloves – obvious clothes
Hard hat – simply a type of hat
Snood – basically a hood that covers the neck and upper shoulder area
Wristlets – essentially detached shirt sleeves
Leggings – look much like traditional legwarmers, but with straps
Metatarsal boots – just a special kind of shoe

The Court than held that safety glasses and earplugs "may have a covering function . . . [but] they are not commonly referred to as articles of dress. And a respirator obviously falls short on both grounds."

What if the time spent "changing clothes" is intertwined with time spent putting on gear that is not covered by Section 203(o)?

Because safety glasses and earplugs did not meet the Court's definition of "clothes," the last challenge before the Court was to decide whether the time spent in these activities must be deducted from non-compensable time. (The respirators were dealt with separately, as discussed below.) If so, "federal judges must be assigned the task of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities during the period in question," a daunting if not impossible task.

The Court then considered whether the de minimis doctrine could be applied to the donning and doffing of safety glasses and earplugs. (Under the de minimis doctrine, "a few seconds or minutes of work beyond the scheduled working hours [may be] disregarded.") The Court found that the part of the statute that is at issue in this case – Section 203(o) – concerned those "trifling" periods of time in which employees washed up or put on various items of clothing needed for their jobs. "There is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators than there is to regard the minute or so necessary to put on a snood." (Emphasis in original.) So, the Court concluded that de minimis did not work here.

Despite the fact that the Court would not disregard the small amount of time taken to put on glasses and earplugs, it did not find that time to be compensable. Hoping to remove federal judges from the minutiae of time studies and the "morass of difficult, fact-specific determinations," the Court spoke of a new way of looking at such time:

Just as one can speak of "spending the day skiing" even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so also one can speak of "time spent changing clothes and washing" when the vast preponderance of the period in question is devoted to those activities. ...The question for courts is whether the period at issue can, on the whole, be fairly characterized as "time spent in 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 (perhaps a diver's suit and tank) the entire period would not qualify as "time spent in changing clothes" under Section 203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing "clothes" as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.

(Bold emphasis added; italics in original.)

The Court noted that the District Court had found that the time spent by each employee donning and doffing safety glasses and earplugs "[was] minimal," and that the U.S. Court of Appeals for the Seventh Circuit (which hears appeals from federal courts in Illinois, Indiana, and Wisconsin) had agreed. The District Court had found that the respirators were put on as needed at job locations, which meant that the plaintiffs were already on the clock when they donned and doffed respirators, making the time spent outside the scope of Section 203(c).


It will be interesting to see whether the Court's decision in Sandifer actually does provide clarity as to the meaning of the term "clothes." Also, the Court's new standard for determining compensable time when both compensable and non-compensable acts are intertwined will be challenging for the courts to apply: "The question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.'" (Emphasis in original.)

It is encouraging to note that the Court was united on this issue, meaning that the decision is likely to stand even as the makeup of the Court changes in the future. (The opinion was written by Justice Antonin Scalia and joined by all justices, except that Justice Sonia Sotomayor declined to join in footnote 7 of the opinion, which said that definitions in Section 203 of the Act do not have to be construed narrowly.)

If you want to discuss the compensability of donning and doffing time or any other wage and hour issue, please contact any member of Constangy's Wage and Hour Practice Group, or the Constangy attorney of your choice.

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