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Section 203(o) of the Fair Labor Standards Act excludes from the definition of hours worked time spent “changing clothes or washing at the beginning or end of each workday” if it has been excluded “by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.”  However, the term “clothes” is not defined in the FLSA.  As a result, courts and the U.S. Department of Labor have been unable to agree upon the meaning of “clothes.”  Now, the U.S. Supreme Court is set to resolve this split of opinion by agreeing to decide the following question:  What constitutes “changing clothes” within the meaning of section 203(o)?

This question arises from Sandifer v. United States Steel Corp. which was decided by the U.S. Court of Appeals for the Seventh Circuit.  In Sandifer, a class of 800 current and former steelworkers of U.S. Steel’s plant in Indiana filed a lawsuit claiming that the company violated the FLSA by failing to compensate them for time spent putting on and taking off their work clothes in the plant’s locker room.  The “clothes” worn by the steelworkers consisted of flame-retardant pants and jacket, gloves, boots, a hard hat, safety glasses, ear plugs and a “snood” or hood that covers the top of the head, chin and neck. 

In response to the steelworkers’ claims, the company invoked section 203(o) of the FLSA and argued that the time spent “donning and doffing” their work clothes is not compensable because the collective bargaining agreement between U.S. Steel and the steelworkers’ union does not require compensation for such time.  However, the steelworkers argued that section 203(o) is inapplicable because their work clothes do not fall within the meaning of “changing clothes” because they constitute safety equipment.  The Seventh Circuit ultimately agreed with U.S. Steel’s position in a decision written by renowned jurist Richard Posner.

In their application to the Supreme Court to review the case, the steelworkers argued that the high court needed to hear the case in order to finally resolve the split among courts over the meaning of “clothes.”  The Court of Appeals for the Fourth, Sixth, Tenth and Eleventh Circuits adopted a broad definition of “clothes,” holding that “clothes” includes anything that can be worn including accessories.  On the opposite end of the spectrum, the Court of Appeals for the Ninth Circuit, which includes California, utilizes a narrow interpretation and excludes protective gear and equipment from the meaning of “clothes” under section 203(o).  While the Seventh Circuit in Sandifer harshly criticized the Ninth Circuit’s position in Alvarez v. IBP, Inc. calling it an “outlier,” it also appears to stop short of completely adopting the broad definition of “clothes” held by other circuit courts.  For example, the Seventh Circuit acknowledged that safety glasses and ear plugs “are not clothing in the ordinary sense.”  The Supreme Court is expected to hand down its final decision in 2014. 

While the Supreme Court’s decision might have some impact on the general question of whether time spent donning and doffing work clothes is compensable, the ruling will be most significant to employers who rely on section 203(o) and collective bargaining agreements to exclude donning and doffing activities from compensable time.  Consequently, the Supreme Court’s decision may result in the Ninth Circuit’s narrow definition of “clothes” in Alvarez v. IBP, Inc. being overruled.

However, the Ninth Circuit’s holding in Bamonte v. City of Mesa that donning and doffing time for police officers is not compensable is unlikely to be affected by the Sandifer case.   In Bamonte, the Ninth Circuit held that the time police officers spend before and after their paid shifts donning and doffing their police uniforms and related protective gear (i.e., body armor and equipment belts) is not compensable work time under the FLSA so long as the officers have the option and ability to don and doff their uniform and gear off of the employer’s premises.  In contrast, Section 203(o) – which was not at issue in Bamonte excludes compensation for donning and doffing activities even when they occur on the employer’s premises so long as what is being donned and doffed constitutes “clothes.” Thus, the only impact of Sandifer will be on employers who do not give employees the option or ability to don and doff work clothes and gear off of the employer’s premises.