Supreme Court weighs in on payment for putting on protective gear
It is rare that safety-related cases make it to the highest court of the land—the United States Supreme Court—but this occurred recently, in a hybrid matter that arose under the Fair Labor Standards Act (FLSA). On January 27, 2014, the Supreme Court ruled, in Sandifer v. United States Steel Corp., that the time workers spend “donning and doffing” their protective gear, such as safety glasses or respiratory protection, is not compensable under the wage/hour law.
The FLSA was amended, back in 1949, to hold that the compensability of time spent changing clothes or washing at the beginning and end of each workday was a subject committed to a company’s collective bargaining agreement (CBA). Whether donning/doffing (putting on and taking off) clothing qualifies as “changing clothes” depending on the meaning of that statutory phrase. The court found there was no reason to interpret this as excluding protective work clothing. However, Section 203(o) of the Act has an exception that applies when the changing of clothes is “an integral and indispensible part of the principal activities” for which covered workers are employed, and thus is compensable. In some occupations, such as butchers and longshoremen, protective clothing does fall within this definition.
The U.S. Steel lawsuit was filed as a “collective action” under the FLSA for back pay covering time putting on clothing and safety protective devices at the start of the shift and taking them off at the end of the shift. About 800 workers working for the defendant’s steel mill were part of the collective group. The plaintiffs asserted that the employer required them to wear all of the items due to hazards encountered on the job. The protective items listed in the complaint were: a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator. They sought to be paid for the time involved with putting on and removing these items each workday.
Because this time would normally be compensable under the FLSA, the court looked to the parties’ collective bargaining agreement, which said the time was non-compensable, but that did not end the analysis, because the CBA provision turned on the applicability of 29 U.S.C. 203(o) to the time at issue. U.S. Steel did not dispute that, had the clothes-changing time not been rendered non-compensable under Section 203(o), it would have been a “principal activity” and subject to payment. It was the workers who argued that the donning/doffing of protective equipment did not qualify as “changing clothes” for purposes of the FLSA and its collective bargaining agreement.
In the initial ruling at the U.S. District Court level, U.S. Steel prevailed, with the court holding that donning and doffing of protective gear constituted changing clothes within the meaning of Section 203(o); the U.S. Court of Appeals, 7th Circuit, upheld those findings. In its 2014 decision, the U.S. Supreme Court affirmed.
In this case, of the 12 items at issue, only three—safety glasses, earplugs, and a respirator—did not fall within the interpretation of clothes, according to the court. The remaining items listed above (e.g., the shirt, pants, hood, and gloves) were “clothes” as they were designed and used to cover the body and were commonly regarded as articles of dress. It found the metatarsal boots (steel-toed boots) were “just a special kind of shoe.”
Apparently concerned that courts would have to separate the minutes spent clothes-changing from the minutes devoted to other activities during the relevant pre/post work periods, some courts of appeal had adopted a “de minimis” approach, but the Supreme Court found it was best to ask whether the period at issue, as a whole, could be fairly characterized as time spent in changing clothes or in washing, rather than having to determine which portion of the donning/doffing period was associated with non-compensable clothing changes under the CBA.
The court noted that there was no basis to conclude that the unmodified term “clothes” somehow omitted protective clothing, such as the fire-resistant garb in this case (a type often worn by electricians and even welders). It wrote that the object of Section 203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through negotiation. It also refused to adopt an interpretation that defined clothes “changing” for simple substitution of street clothes with other clothes as a matter of choice, or layering of garments.
Simply put, if an employee devotes the vast majority of that time to putting on or taking off safety equipment listed above or other non-clothes items (e.g., a hard hat or reflective vest), the entire period would not qualify as “time spent changing clothes” even if some clothes items were also put on or removed by the employee. But if the vast majority of time is spent donning/doffing “clothes” then the entire period would qualify and the time spent putting on the safety gear would not need to be subtracted, as it would be minimal.
The interpretation adopted by the high court leaves room for distinguishing between clothes and wearable items that are not clothes, such as some safety equipment and devices. Where a CBA exempts the employer from payment for time spent changing clothes, no additional pay will be required for the donning/doffing of safety items under most circumstances as long as the majority of the donning/doffing time is related to exempt clothing changes. In a non-union work environment, things may be less clear because no CBA would apply and the court would have to look at the totality of the circumstances and how integral the changing of clothes is to the employer’s principal activities.
One consideration will likely be whether employers are required to provide and enforce the use of such equipment by law. Therefore, as OSHA moves forward on its crystalline silica standard, which (as proposed) would require more prevalent use of respirators in the workplace for certain construction tasks, and even establishment of regulated areas where clothes changing might be required, employers would be well-served to understand the pertinent provisions of the FLSA, regardless of whether they are a unionized workforce. ■
About the Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, April 2014
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