A Victory for Clothing! Being paid while donning and doffing work Uniforms becomes clarified

safety gearOnly attorneys can argue over the narrow construction of the meaning of “clothes” and “time spent in changing clothes … at the beginning or end of each workday” per (29 U.S.C. § 203(o)) of the Fair Labor Standards Act and if a collective bargaining act so provides.   This matter was addressed in the recent opinion of Sandifer v. United States Steel Corporation on January 27, 2014 where the parties literally distinguished “clothes” with competing publications of dictionaries.  The narrow issue for the Court was to define whether “donning and doffing” of “clothing” per certain collective bargaining agreements included certain types of protective gear and if this was a compensable activity.  Disagreement arose between the employees and employer about whether the donning and duffing of protective gear and the beginning and end of shifts was included in their collective bargaining agreement.

There has been much litigation over the last several years by employees in collective action wage claims against employers demanding pay for time “donning and doffing” clothing such as uniforms and protective gear in preparation for their shift.  These claims are addressed by what is known as a donning and duffing rule (putting on and taking off) under the Fair Labor Standards Act. According to a Supreme Court opinion on the Portal-to-Portal Act of 1947, “[p]reliminary and postliminary activities are compensable . . . if they are an ‘integral and indispensable part of the [employee’s] principal activities.”  It is worthy to note that many new regulations requiring types of clothing, equipment, and safety gear have been passed since the 1947 that were not contemplated due to new technology and increased occupational safety hazards.

According to the most recent guidance published by the department of labor, donning and doffing, which may include clothes changing, can be a “principal activity” under the Portal to Portal Act, 29 U.S.C. § 254. IBP v. Alvarez, 546 U.S. 21, 30 (2005). The Supreme Court in Alvarez explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. Alvarez, 546 U.S. at 37. Thus time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the “continuous workday” and is compensable under the FLSA.

The fact pattern unique to this case that the Court had to adjudicate was that employees were donning and duffing what the Court considered protective clothing from protective non-protective clothing at the same time.  The Court stated in its analysis was that the proper test was to look at the totality of the circumstances regarding what the employees were doing at the time and however much time was spent should govern the applicability of section 203 and whether it is compensable under the donning and duffing rule.  Adding further to the discerning analysis by the Court was a footnote that, while exemptions from the FLSA are to be narrowly construed against employers, the narrow-construction principle is limited to provisions appearing in 29 U.S.C. § 213, entitled “Exemptions,” and does not apply to provisions appearing in section 203, entitled “Definitions.”  In the opinion by Justice Scalia that was unanimous except as to a single footnote, the Court held that “clothes,” for purposes of the FLSA, means “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court noted that its definition excludes many accessories and tools that are not designed and used to cover the body or normally regarded as articles of dress—a departure from the position embraced by some courts of appeals.  The Court further held that “changing,” for purposes of the FLSA, includes all time spent in altering dress, whether or not protective clothes are substituted for or supplemental to a worker’s ordinary dress.  In essence, donning and duffing of protective clothing in the course of changing clothes is not a compensable activity even if you are putting on other protective gear.

If you as employee are not subject to a collective bargaining agreement or your collective bargaining agreement includes donning and duffing of protective gear/clothing, then you are not likely to be affected by this holding.  However, those whose collective bargaining agreements do not include such as a compensable activity, your remedies are now much more limited and you will likely find yourself not being compensated for such activity and time.



About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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