The Supreme Court handed employers an important victory on Monday, holding that the phrase “changing clothes” in Section 203(o) of the Fair Labor Standards Act included protective gear and that time spent changing into and out of such gear need not be compensated where parties to a collective bargaining agreement (“CBA”) have so agreed. The Court’s ruling is largely consistent with the view of a majority of the federal circuit appellate courts that had previously addressed the question, and had held that parties to a CBA can agree—whether by explicit writing or longstanding practice—to exclude from compensation time spent donning and doffing protective work gear.
The employees in the case, at the defendant’s steelmaking facilities, sought backpay for time spent putting on (“donning”) and taking off (“doffing”) various pieces of required protective gear. Those articles included a flame-retardant jacket, pair of pants, hood, hardhat, a “snood” (i.e., neck and hair protector), wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs, and a respirator. The employer acknowledged that the time spent donning and doffing these items would ordinarily be compensable under the FLSA’s “continuous workday rule,” but argued that Section 203(o)—which allows parties to a collective-bargaining agreement to decide that “time spent in changing clothes . . . at the beginning or end of each workday” was noncompensable—precluded the plaintiffs’ donning and doffing claims.
Consulting dictionaries from the era of Section 203(o)’s enactment in 1949, the Court held that “clothes” includes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” In so holding, it rejected the employees’ attempt to distinguish between articles worn for protection and those worn for “decency or comfort,” explaining that the two concepts are “not incompatible, and are often synonymous.” The Court noted that if the meaning of “clothes” was so restricted, it would limit Section 203(o)’s reach to “near nothingness,” since protective gear “is the only clothing that is integral and indispensable to the work of factory workers, butchers, longshoremen, and a host of other occupations.” As the Court explained “[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.” The Court pointed out however, that its definition of “clothes” was not without limits, and did not necessarily include, anything worn on the body, such as accessories, tools and other devices.
Applying its definition of “clothes,” the Supreme Court concluded that all but three items were encompassed within its definition—the safety glasses, earplugs, and respirator. Although these items were not subject to Section 203(o), the Court instructed that the time spent donning and doffing these items did not necessarily give rise to an FLSA claim. Rather, it explained how courts should handle claims brought by employees required to don and doff a mix of “clothes” and other non-exempt equipment: 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 . . . the entire period would not qualify as ‘time spent in changing clothes’ under § 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.”
While the recent case will likely lead to future attempts to wrestle with the court’s “vast majority” analysis, the Court’s unanimous opinion leaves in place employers and unions ability to bargain as to the start and end of the work day, and to define the activities that will require compensation.