Donning and Doffing – So You Think That You Contracted Out of It?

DONNING AND DOFFING – SO YOU THINK THAT YOU CONTRACTED OUT OF IT?

Source: Sandifer, et al. v. U.S. Steel Corporation, 678 F.3d 590, 593 (7th Cir. 2012)

Contributed by Beverly Alfon

Do you have a collective bargaining agreement with a union that excludes pay for time that employees spend donning and doffing protective clothing?  Today, the U.S. Supreme Court heard oral arguments in a case that could determine that you are liable for that time – regardless of what the collective bargaining agreement says. 

Generally, the Fair Labor Standards Act (FLSA) requires employers to pay employees for donning and doffing protective clothing, if they are required by law or the employer to change into their work clothes at work.  However, the law recognizes an exception to the rule for a unionized workforce where the union and employer have bargained over whether or not employees will be paid for time spent in changing clothes or washing at the beginning or end of each work day.  The issue before the Supreme Court is whether or not the protective gear pictured above (flame-retardant pants and jacket, work gloves, steel-toed boots, a hard hat, safety glasses, ear plugs, and a “snood” – a hood that covers the top of the head, the chin, and the neck) is included in the FLSA’s definition of “clothing.” 

Sandifer, et al. v. U.S. Steel Corporation is a case that started as a class action on behalf of 800 former and current hourly workers at U.S. Steel’s steel works in Gary, Indiana. The plaintiffs argued that U.S. Steel violated FLSA by failing to pay them for time that they spent putting on and taking off their work clothes in a locker room at the plant.  The lower court ruled that in light of the collective bargaining agreement that excluded pay for that time, U.S. Steel was not required to pay the employees for that time.  On appeal, the Seventh Circuit agreed and held that the case should be dismissed.  The plaintiffs sought review by the U.S. Supreme Court, which agreed to consider the issue.

There is a split among the courts.  Unlike the Seventh Circuit and others, the Ninth Circuit (Alvarez, et al. v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003)) interprets “clothing” to exclude “safety equipment” from the FLSA exception, characterizing it as “different in kind from typical clothing.”  The Department of Labor has also gone back and forth on its interpretation of “clothing” – but recently did an about-face in this case, broadly interpreting “clothing” in favor of employers. 

BOTTOM LINE:  If the Court determines that this type of protective wear is NOT “clothing,” employers who negotiated an exclusion of payment for donning and doffing of clothing may be liable for significant backpay for time that employees have spent donning and doffing protective gear, regardless of what the union agreed to in writing.  On the other hand, if the Supreme Court determines that the donning and doffing of protective gear falls within the FLSA exception and may be negotiated out between the employer and union, applicable state wage and labor laws may nonetheless require compensation.  We will continue to monitor these developments and keep you informed.