Earlier this week, U.S. Steel and employers across the nation rejoiced as the United States Supreme Court issued a decision regarding the meaning of the phrase “changing clothes” within the context of the Fair Labor Standards Act. To understand why this ordinary phrase received such extraordinary attention requires some understanding of the Act itself, and the right of labor unions to negotiate over what type of work is compensable.
In 1938, when Congress enacted the Fair Labor Standards Act, which governs the minimum wages and maximum hours for individuals working in non-exempt positions, it failed to include definitions of key terms, such as “work” and “workweek.” The Supreme Court addressed the meaning of these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Co., concluding that the term “workweek” includes all time during which an employee is required to be on the employer’s premises and includes time spent engaged in “preliminary activities . . such as putting on aprons and overalls [and] removing shirts.” The Court held that these activities – which came to be referred to as “donning and doffing” — are “work” for which employees should be compensated.
Just three years later, in 1949, Congress amended the FLSA in order to provide that the compensability of time spent donning and doffing clothing, as well as washing, was an appropriate subject for collective bargaining. Thereafter, unions were free to negotiate with employers with respect to whether employees would be paid for “time spent in changing clothes or washing at the beginning and end of each workday.” And, not too surprisingly, in the rough and tumble of union negotiations, many employees ended up working under contracts which provided that they did not get paid for changing clothes, even if the clothing was required and took significant time to get in and out of.
In Sandifer v. United States Steel Corporation, decided earlier this week, steelworkers asked to be paid for time that they spent putting on and taking off fifteen items of “personal protective gear,” including flame-retardant outerwear, gloves, steel tipped boots, hard hats, and snoods. (For the uninitiated, a “snood” is basically a hood that covers the neck and shoulder area, rather like a balaclava.) Attorneys for the steelworkers argued that these items were “protective gear” and not “clothes” within the meaning of the FLSA. In contrast, the employer, US Steel, argued that these items were encompassed within the meaning of the phrase “changing clothes” and were appropriately covered under the union contract.
The Supreme Court relied on 1940s dictionary definitions of the words “changing” and “clothes” to decide the case, holding that “changing clothes” encompassed both changing from street clothes to work clothes and layering protective gear over work clothes. Thus, the court concluded, if a collective bargaining agreement provided that employees would not be paid for “changing clothes,” they would not be entitled to pay for time spent donning and doffing protective gear.
The opinion has been widely hailed as a victory for employers, but its “gotcha” effect is likely to be short lived. The next time the parties sit down at the bargaining table it’s unlikely that the putting on and taking off of protective gear will fly under the radar.