Under the Fair Labor Standards Act (FLSA), time spent “changing clothes or washing at the beginning or end of each workday” is normally compensable time, unless employers and employees agree otherwise during collective bargaining. In this case, the employees sought back pay for the time spent equipping and removing personal protective equipment (PPE) required by U.S. Steel. Under the collective bargaining agreement between the employees and U.S. Steel, time spent donning and doffing clothing is non-compensable. U.S. Steel argued that PPE fell under the definition of clothing, and not subject to compensation because of the collective bargaining agreement. The employees argued that the donning and doffing of PPE did not constitute “changing clothes,” and was therefore not considered in the collective bargaining agreement.
The Supreme Court considered the definition of “clothes,” which was not specifically defined in the FLSA. Without a statutory definition, the Court looked at the “ordinary, contemporary, common meaning” of “clothes.” Using dictionaries from the era when the statutory section was written, clothes were defined as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The employees argued that “clothes” excluded items designed to protect against workplace hazards, drawing a distinction between items for protection and items for decency or comfort. The Court found that these terms were not mutually exclusive, and could fall under both categories. Additionally, the Court argued that PPE is the only clothing that many employees are required to wear, which would render the section inapplicable to most workers.
After finding that PPE is considered clothing under the FLSA, the Court also defined that term “changing.” The employees argued that “changing” meant “substitution,” which would mean placing PPE over an employee’s street clothes was not considered “changing clothes.” The Court disagreed, noting that although “changing” often means substitution, it may also mean “to alter.” Placing PPE on top of street clothes is akin to altering the employee’s clothes, and therefore subject to the collective bargaining agreement.
After concluding that PPE was generally subject to the collective bargaining agreement, the Court evaluated particular pieces of PPE to determine whether the donning and doffing of the items were compensable or non-compensable. The Court evaluated 12 items the employees identified, and found nine of the items were clothes because they were “designed and used to cover the body and are commonly regarded as articles of dress.” The nine items were: a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; and metatarsal boots. The other three items were not regarded as clothes: safety glasses; earplugs; and respirators. The Court found these three items were not commonly regarded as articles of dress. However, the time spent on donning and doffing non-clothes PPE may occur at the same time as the donning and doffing of clothes-like PPE. To ease the administrative burden, the time spent donning and doffing PPE should be categorized as a whole. If the vast majority of the time is spent on clothes-like PPE, then the time is subject to any collective bargaining agreements. If, however, the vast majority of the time is spent on non-clothes PPE, then the collective bargaining agreement clause of the FLSA would not apply, and this time would be compensable.
Sandifer v. U.S. Steel Corp., 571 U.S. ____ (2014)
Josh Cable, “Supreme Court Sides with U.S. Steel in PPE Case,” EHS Today, January 28, 2014