US Supreme Court.jpgThis blog post was authored by Alison Kosinski

In 2010, the Ninth Circuit held that the time police officers spend before and after their paid shifts donning and doffing is not compensable work time under the FLSA so long as the police officers have the option and ability to put on and take off their uniforms and gear away from the employer’s premises.  However, in some cases employers do require employees to don and doff uniforms and gear on the work premises.  In those cases, section 203(o) of the FLSA permits employers to collectively bargain with employees to exclude compensation for “time spent in changing clothes . . . at the beginning or end of each workday.”  However, the FLSA does not define “changing clothes,” and Circuit Courts across the country have developed both narrow and broad definitions.  As we wrote in February 2013, the U.S. Supreme Court took up the definition of “changing clothes” in Sandifer v. United States Steel Corporation.  On January 27, 2014, the Court issued its decision.

In Sandifer, steelworkers and the company had entered into a memorandum of understanding that made time spent by the employees donning and doffing protective gear not compensable.  The gear included pieces such as a jacket, pants, and hood, as well as safety glasses, earplugs and a respirator.  The steelworkers argued that donning and doffing these items did not constitute “changing clothes” and, therefore, could not be negotiated to be noncompensable under Section 203(o) of the FLSA.  The company argued that all of these items were “clothes” and fell within Section 203(o).

In its decision, the Supreme Court adopted the ordinary, common meaning of “clothes”:  clothes are “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  In adopting this definition, the Court agreed with the company that “clothes” include protective clothing and protective gear.  The Court explained that “clothes” refers to items that are integral to the job.  To exclude protective gear would inappropriately limit the application of section 203(o) to only employee costumes and some uniforms, but exclude the integral and indispensable uniforms of, for example, factory workers.  The Court acknowledged, however, limits to the definition—for example, necklaces or tools are not commonly regarded as articles of dress.

The Court next adopted the common meaning of “changing” to include both switching clothes and altering dress.  The Court explained that it is irrelevant whether an employee changes out of street clothes and into work clothes or just layers work clothes on top of street clothes.

Applying these definitions to this case, the Court held that the following nine items constitute “clothes”:  flame-retardant jacket, pair of pants, hood, hardhat, snood (a hood that covers the top of the head, neck and chin), wristlets, work gloves, leggings and steel-toed boots.  Each of these items is designed and used to cover the body and is commonly regarded as articles of dress.  However, the Court held that three of the items that the steelworkers donned and doffed each workday are not clothing because they are not commonly regarded as articles of dress:  safety glasses, earplugs, and respirator.

This holding left the Court with a dilemma:  Should employers, and in turn judges, be responsible for separating minutes spent by employees changing clothes from minutes spent changing non-clothes each work day?  In order to avoid this tedious and impractical result, the Court created a test for courts examining this issue going forward:  “The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing’.”  If the vast majority of time is spent donning and doffing “clothes,” even though some of the items may not be clothes, then the entire period falls within section 203(o) and can be uncompensated.

This holding is important for California employers that require employees to don and doff clothing and protective gear on the work premises. This case overrules the leading case from the Ninth Circuit Court of Appeals, Alvarez v. IBP, in which the Ninth Circuit adopted a narrower definition of “clothes.”  In that case, the Court excluded from the definition of “clothes” unique protective gear for purposes of Section 203(o).  Now, based on Sandifer, any unique protective gear that meets the Supreme Court’s broader definition of “clothes” can be excluded under Section 203(o).  In addition, even donning and doffing of unique protective gear that is not considered “clothes” may still be excluded from hours worked if the majority of donning and doffing time is nonetheless spent changing clothes.