In a near unanimous decision on Monday, the United States Supreme Court further clarified the multifaceted and oft-litigated issue of whether "donning and doffing" of some protective gear prior to or following a work shift falls within the "changing clothes" exception of the Fair Labor Standards Act ("FLSA").  The Court’s decision permits such actions to be deemed noncompensable in a collective bargaining agreement.   

In Sandifer et al. v. United States Steel Corp., the plaintiff, on behalf of allegedly 800 similarly situated workers, filed suit against U.S. Steel alleging violations of the FLSA, seeking backpay for time spent donning and doffing various pieces of protective gear.  The plaintiff sought backpay compensation despite the collective bargaining agreement in place specifically defining the time as noncompensable.  Because the act of donning or doffing protective equipment, or changing clothes, would otherwise be compensable under the FLSA, U.S. Steel's contention of noncompensability rested upon the validity of the provision in the collective bargaining agreement. The validity of the provision, in turn, rested upon the applicability of an exception to the FLSA contained in 29 U.S.C. § 203(o), which allows parties to decide, as part of a collective bargaining agreement, whether the time spent "changing clothes" is compensable, but not the time spent donning and doffing other equipment or non-clothes items.  

The Court held that the articles donned and doffed by the workers, despite being safety related equipment such as hardhats, work gloves, and a fire-retardant jacket, fell within the ordinary definition of "clothes" and within the § 203(o) exception.  The Court's definition of "clothes" -- derived from dictionaries in circulation at the time the exception was enacted -- "denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress."  Hence, the jacket, albeit fire-retardant, falls within this definition.  

Furthermore, the Court held that even though there were three pieces of equipment that may not fall within the definition of "clothes" (i.e. safety glasses, earplugs, and a respirator), the entire time would nevertheless be noncompensable.  The Court said Congress did not intend § 203(o) "to convert federal judges into time-study professionals."  Rather, "[t]he question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.' "  Therefore, if an employee devotes the vast majority of the time in question to putting on and off clothes as the Court defined that term, the entire period qualifies, and the time spent putting on and off other items of non-clothing need not be subtracted.  

The Sandifer decision applies a common-sense approach to the often litigated and complicated fact-finding analysis of what is properly defined as "clothes" under the law.  However, the knife cuts both ways; time spent donning and doffing predominately non-clothes items, even if coupled with putting on or off relatively minimal "clothes," would render the entire time compensable regardless of a collective bargaining provision to the contrary.