Last month, the U.S. Supreme Court decided a significant case regarding claims involving donning and doffing for unionized employers. And no, donning and doffing are not Santa’s new reindeer. Rather, “donning” refers to putting on protective gear, clothing, or uniforms before the start of work, while “doffing” refers to taking off those items at the end of the work day. In Sandifer v. U.S. Steel Corp., the Court held that employees were bound by the terms of their collective bargaining agreement, which provided that they were not on the clock – and thus not to be compensated – for time spent donning and doffing their protective gear.
By way of background, employers are generally required under the Fair Labor Standards Act (FLSA) to pay employees for time spent while donning and doffing their protective gear, if the protective gear is required by the employer and if the employee is required to change into and out of the gear at work. As is sometimes the case, however, there is an exception. If there is a collective bargaining agreement (CBA) governing the employment relationship, and if the parties have agreed in the CBA to exclude from hours worked “time spent in changing clothes or washing at the beginning or end of each workday[,]” then time spent doing so is not compensable.
The chief issue in Sandifer revolved around the phrase “changing clothes.” The employees argued that a provision in their CBA that excluded the changing of clothes from compensable time was not subject to the above exception because donning and doffing protective gear was not the same as “changing clothes.” Specifically, the employees claimed that clothes are meant for “decency and comfort,” whereas the protective gear they were donning and doffing off each day (comprised of 12 separate pieces of protective clothing) were geared more towards protection against workplace hazards. Thus, they argued, the exception did not apply.
The Court disagreed, refusing to take such narrow interpretation of the word “clothes.” The Court found it important that the statute did not specifically exclude protective clothing from the definition of clothes. The Court also rejected the employees’ narrow interpretation of “changing,” finding that “changing clothes” does not literally mean taking off one article of clothing and replacing it with another, as the employees’ suggested, but rather that it meant “time spent in changing clothes includes time spent in altering dress.”
In light of the Court’s decision, labor professionals working for employers where employees must change clothes, including the donning of some protective gear, prior to beginning work should take note. The decision makes clear that a provision in a CBA that excludes such clothes changing time is effective.
If the CBA does not contain such a provision, consideration should be given to adding one in the next round of bargaining. If the CBA does contain such a provision, the employer should review whether the types of “clothes” that are donned and doffed and the amount of time spent doing so are sufficiently similar to the facts in Sandifer to ensure a similar result if challenged.