Donning and Doffing Protective Clothing is Not Working Time

January 30, 2014

On January 27, 2014, the United States Supreme Court decided that United States Steel Corporation did not have to pay employees covered by a collective bargaining agreement for the time they spent donning and doffing protective clothes. Sandifer v United States Steel Corp , ___ U.S. ___ (2014).

Under the Portal-to-Portal Act, 29 U.S.C. §251 et seq , "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity'" and the employer must pay its employees for the time spent performing the activity. This includes "changing clothes and showering . " Steiner v Mitchell , 350 U.S. 247, 254-256 (1956). However, 29 U.S.C. §203(o) of the Fair Labor Standards Act defines "hours worked" to exclude " any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." Sandifer resolves a conflict between several United States Circuit Court of Appeals on whether changing into and out of protective clothing is covered by the clothing exception in 29 U.S.C. §203(o).

The U.S. Steel plant in Gary, Indiana required employees to change into protective gear before beginning work and take it off after work. The protective gear included a flame retardant jacket, pair of pants, and hood; a hardhat; a "snood"; "wristlets"; work gloves; leggings; steel tip boots; safety glasses; earplugs; and a respirator. The collective bargaining agreement between the union representing the employees and U.S. Steel stated that the company did not have to pay for this time. The U.S. Steel employees argued that the protective gear was not clothing and argued that the company should pay for the time it took to don and doff the protective gear. Using dictionary definition of "clothing," the Court held that the word "clothes" denotes "items that are both designed and used to cover the body and are commonly regarded as articles of dress." Because the protective gear covered the body, the Court rejected the proposition that the word "clothes" omits protective clothing. The Court cautioned that certain accessories, like necklaces and knapsacks were not designed to cover the body and that tools are not "commonly regarded as articles of dress."

The Court also rejected the plaintiff's argument that the word "changing" did not include putting protective clothing over the employee's street cloths. The Court defined the term "changing" to mean substituting or altering an employee's dress. The Court concluded that the flame retardant jacket, pair of pants, hood , hardhat , snood , wristlets , work gloves , leggings and steel boots were clothing as defined by the statute.

The Court turned to the safety glasses , earplugs , and respirator . It found that they were not clothes because they are commonly not regarded as articles of dress. The Court rejected the lower courts' finding that the employer did not have to pay for the time to put on the safety glasses, earplugs and respirator because it was de minimis . Rather, the Court found that where the period for donning and doffing protective gear could, "on the whole, be fairly characterized as 'time spent in changing clothes or washing'" the time was not compensable. It concluded in this case that the period of time donning and doffing could, on the whole, be fairly characterized as "time spent changing clothes or washing."

Employers who require employees to change into protective clothing before proceeding to their work stations may not have to pay employees for the donning and doffing time if:

A collective bargaining agreement covering the employees contains a provision that the employer need not pay employees for donning and doffing clothing.
Even if the collective bargaining agreement is silent on this issue but the employer has custom or practice of not paying for the donning and doffing time under the collective bargaining agreement, the employer may be able to exclude the time from time worked. We recommend you check with your labor counsel to determine if you can.

If the employer does not have a collective bargaining agreement, it must determine if the protective gear is an integral part of the employee's principal activity. If it is, the employer must pay employees for their donning and doffing protective gear. Again, we recommend that you discuss this with your labor attorney. The Sandifer decision does not change the law regarding paying employees for the time it takes to go from the locker room, where the employees don and doff the protective clothing, to their workstations and back to the locker room to doff the protective clothing. Employers may have to pay for this time if the donning and doffing of the protective clothing is an integral part of the employee's principal activity.

If you have any questions about donning and doffing clothing, you may contact Thomas P. Brady, (313) 965-2891, tbrady@clarkhill.com , Kurt A. Miller, (412) 394-2363, kmiller@clarkhill.com , James R. Stadler, (616) 608-1164, jstadler@clarkhill.com , or another member of Clark Hill's Labor and Employment Practice Group.