Thursday, the United States Supreme Court heard argument in another “donning and doffing” case.  Donning and doffing refers to the need for employees to put on (“don”) and take off (“doff”) clothing as part of their job.  The last time the U.S. Supreme Court heard a donning and doffing case IBP v. Alvarez, et.al, 03-1238  (Nov. 8, 2005) related to poultry processing plant workers who argued that the time that it took the workers to put on and take off their protective gear should be included in their wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”), as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262 (“Portal Act”).  The employer had argued that the donning and doffing of protective gear was not part of the job and therefore the employees did not have to be paid for that period of time.  The Supreme Court disagreed, holding that the donning and doffing of protective gear was “an integral and indispensable part of the principal activities” of the poultry workers’ job (as was walking to and from their changing rooms) since they could not perform their job without putting on and  taking off their protective equipment. Therefore employers must generally pay for:

• Time spent putting on or taking off unique protective gear or clothing.
• Time spent walking from a company locker room after putting on such equipment.
• Time spent walking to the company locker room before taking off such equipment.
• Time spent waiting to take off such equipment.

Thursday, in Sandifer, et al. v. U.S. Steel Corp., No. 12-417, the United States Supreme Court heard another important donning and doffing case.  This case involves the same FLSA provision (as modified by the Portal Act) as in Alvarez, that allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time “any time spent in changing clothes or washing at the beginning or end of each workday.”  The issue here revolves around the difference between protective equipment and basic clothes.  U.S. Steel argued (among other things) that the employees’ putting on protective equipment (including the following items: hardhats, safety glasses, earplugs, respirators, protective hoods, flame-retardant jackets and pants, work gloves, arm and wrist protectors, steel-toed boots, and leg protectors) was merely “changing clothes” and did not fall within the Alvarez “integral and indispensable part of the principal activities” rule.

Since 1947, U.S. Steel, in accordance with its negotiated collective bargaining agreements with the United Steelworkers, has paid workers only for the eight-hour shift they perform while actually working, not while donning and doffing, nor does it pay workers for travel from the locker room to their work area.  An employee sued for overtime for the time spent donning and doffing the clothes and equipment and walking from the locker room to his work area.

The Seventh Circuit  ruled that the case should be dismissed, stating that, “given the terms of the collective bargaining agreement, U.S. Steel doesn’t have to compensate its workers for the time they spend changing into and out of their work clothes.”  Moreover, the court stated that most of protective equipment worn by U.S. Steel workers constituted “clothing” (with some exceptions) and that donning and doffing those items constituted the act of “changing clothes.”  It therefore concluded that the company had no obligation to compensate the workers for their travel to their workstations.

The Supreme Court will answer the following limited question: “What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the Fair Labor Standards Act?”

This case is important for any employers that have employees who either change clothes in order to perform their jobs or don various equipment as part of their job performance.  If the Supreme Court holds in favor of the employer, then those companies that require employees to change clothes or don certain equipment prior to beginning their shifts, may not have to pay those employees for that period of time in which they are changing their clothes and walking to their work stations.  On the other hand, if the Supreme Court sides with the employees and the union, then every employer who requires its employees to change clothes before commencing work, may be exposed to additional wage payments for those employees.  All of this will depend on how the court rules.  Stay tuned.