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Defining “Clothes”: Supreme Court Issues Anticipated FLSA Ruling

On Monday, January 27, 2014, the United States Supreme Court issued its decision in Sandifer v. U.S. Steel Corp., where it was asked to determine whether time spent by employees donning and doffing protective gear prior to a shift was compensable time under the Fair Labor Standards Act (“FLSA”). The unanimous Court upheld a Seventh Circuit Court of Appeals decision that Section 203(o) of the FLSA allows U.S. Steel to withhold pay from workers for time spent changing clothing under a collective bargaining agreement.


In 2007, current and former employees of U.S. Steel’s Gary, Indiana plant brought a collective action against U.S. Steel seeking overtime pay for the time they spent donning and doffing required personal protective equipment and the time spent traveling between the locker rooms and work stations. The workers’ protective gear included: flame-retardant jacket, pants, a hood, a hardhat, a “snood,” wristlets, work gloves, steel-toed boots, leggings, earplugs, safety glasses, and a respirator. Under the parties’ collective bargaining agreement U.S. Steel did not compensate the employees for the time that was spent putting on and taking off the protective equipment. Approximately 800 workers at the Gary Indiana, as well as employees from plants in Michigan and other Indiana cities eventually opted-in to the action.

The District Court partially granted summary judgment to U.S. Steel finding that the collective bargaining agreement rendered the workers’ donning and doffing time non-compensable under FLSA Section 203(o). Section 203(o) provides that compensable time does not include “time spent in changing clothes” at the beginning or end of a work shift if the activity was “excluded from measured working time” through the “express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” The Seventh Circuit affirmed the district court’s dismissal of the donning and doffing claim and the Supreme Court heard oral argument on the matter in November.


The Supreme Court first analyzed the term “clothes,” relying on 1949 dictionaries—which would have been used when Section 203(o) of the FLSA was added. The Court rejected the employees’ argument that the Section 203(o) definition of clothing excludes protective items designed and used to keep employees safe from workplace hazards. Justice Scalia’s opinion noted that comfort and protection are not incompatible and “are often synonymous:” “A parasol protects against the sun, enhancing the comfort of the bearer—just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer.”

In defining “changing clothes”, the Court stated: “We think that despite the usual meaning of ‘changing clothes,’ the broader statutory context makes it plain that ‘time spent in changing clothes’ includes time spent in altering dress,” Scalia wrote. “Where another reading is textually permissible, [Section] 203(o) should not be read to allow workers to opt into or out of its coverage at random or at will.” When discussing the merits of the case, the Court held unanimously that the employees’ time spent donning and doffing their protective gear is not compensable because they were “changing clothes” under Section 203(o) of the FLSA. The Court held that the workers’ flame-retardant jackets and other gear are “clothes” because they were “designed and used to cover the body and are commonly regarded as articles of dress.” The Court did, however, find that the workers’ glasses, earplugs, and respirators did not fall within the definition of “clothes” but that the time spent putting off or taking off these items was de minimis. In trying to further define this ruling the Court directed lower courts to inquire “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’” Thus, when an employee “devotes a vast majority of the time in question” to donning and doffing non-clothes equipment (such as earplugs or glasses), the entire period would be compensable because it would not constitute “changing clothes” under the statute—even where the employee also put on or took off some clothes. If, however, an employee spends “the vast majority” of time donning and doffing clothing then “the entire period qualifies and the time spent putting on and off other items need not be subtracted.”

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