By Curt Surls
You recently graduated from a private, liberal arts college in a leafy Midwestern town with a B.A. in Medieval Albanian Poetry. Nevertheless, you found a job straight out of college. The good news is that your new job pays a living hourly wage, and you are represented by a strong union. The bad news is that you have to wear a gorilla suit to work. Further, the collective bargaining agreement between your union and your employer denies you compensation for the time spent changing into and out of your gorilla suit. Are you out of luck?
Maybe not. The US Supreme Court is hearing arguments this week in a “donning” and “doffing” case. “Donning” and “doffing” are archaic verbs used only by labor lawyers and minor Dickens characters. In legal parlance, you do not “take off” your gorilla suit after work; you “doff” your gorilla suit.
Ideally, you shouldn’t have to do any doffing on your own time. Under state and federal law, if you are required to change into a uniform or protective gear at the workplace, you are generally entitled to be compensated for that time. Your gorilla-suit-donning time should be compensable.
But there’s a wrinkle to this rule in the context of a unionized workplace. Section 203(o) of the Fair Labor Standards Act (“FLSA”) permits a union to bargain away an employee’s right to compensation for time spent “changing clothes” at the beginning or end of the workday.
Since the late 1940’s, the United Steelworkers union has traded its members’ right to be compensated for “donning and doffing” for other benefits. And that agreement is at issue before the U.S. Supreme Court now in Sandifer v. United States Steel Corporation.
The steelworker plaintiffs in Sandifer have to outfit themselves in a variety of flame-retardant safety-gear before commencing their shifts. They argue that the union has no right to bargain away their right to compensation for time spent “donning and doffing” the protective gear because they are not “changing clothes” within the meaning of the FLSA. The term “changing clothes,” they assert, refers to “substituting certain clothes for others, not merely putting on something else” over them. The union, therefore, cannot bargain away their right to be compensated for time spent wrestling with the Kevlar. They want to be paid for this time.
The company, with support from the Obama Administration, is arguing for an expansive definition of “clothes,” that would include protective gear, and other accoutrements such as safety goggles and ear plugs. In other words, US Steel and the government want union and management to have the ability to bargain away the employees’ right to be compensated for the time they spend “donning” their protective gear.
Nonsense, claim the steelworkers, who argue that an expansive definition of “clothes” and “changing clothes” could lead to absurd results. In an analogy that makes my gorilla suit example seem temperate, the steelworkers question whether an overly-broad definition of “clothes” would include make-up for a KISS cover band or Captain Kangaroos’ wig (that was a wig?!).
In the end, most observers think the US Supreme Court will duck the issue of gorilla suits, KISS make-up and children’s show host hairpieces and adopt the definition of “clothes” proffered by the Department of Labor: Items like hoods, jackets, gloves, pants, leggings, helmets and boots will be considered “clothes” whether or not they are protective in nature. Therefore, a union can bargain away the right to compensation for “donning and doffing” those items.
And gorilla suits? If you’re in a union, and you’re required to wear a gorilla suit to work (admittedly, this may not be a substantial demographic), the Sandifer decision probably won’t affect you; “donning” a gorilla suit would still likely be considered “changing clothes.” However, workers in dangerous jobs that require extensive safety gear will be watching this case with greater interest.
About Curt Surls
Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.