On January 27, 2014 in Sandifer v. U.S. Steel Corp., the US Supreme Court unanimously held that time spent donning and doffing protective gear was not compensable under 29 U.S.C. § 203(o) (Section 203(o)) of the Fair Labor Standards Act (FLSA) when, on the whole, the vast majority of the time was spent "changing clothes" and the parties agreed that time was noncompensable under their collective bargaining agreement (CBA). (No. 12-417, (U.S. Jan. 27, 2014).)

In Sandifer, current and former hourly employees of U.S. Steel's steelmaking facilities filed a putative collective action against their employer under the FLSA for time spent donning and doffing the various items of protective gear they were required to wear. The district court held that although this time would otherwise be compensable under the FLSA, the parties' CBA provided that time spent changing clothes was noncompensable under Section 203(o).

Section 203(o) provides that any time spent in "changing clothes or washing at the beginning or end of each workday" may be excluded as compensable time by the express terms of a CBA or by custom or practice under a bona fide CBA.

The district court reasoned that most of the protective gear fell within the definition of "changing clothes" under Section 203(o), and even though some of the protective items were not "clothes," the time spent donning and doffing non-clothing items was de minimis. The district court held that none of the donning and doffing time was compensable. The US Court of Appeals for the Seventh Circuit affirmed (see Legal Update: Compensability of Changing Clothes and Travel Time Further Defined: Seventh Circuit).

The US Supreme Court, in a unanimous decision, affirmed the Seventh Circuit's holding that the time employees spent donning and doffing protective gear was not compensable under Section 203(o). Although the Court rejected the district court and the Seventh Circuit's application of the de minimis test for the items that did not constitute "clothes," the Court reached the same conclusion when it determined that on the whole, the employees spent a vast majority of their time putting on and taking off "clothes" as defined by the Court.

Evaluating whether donning and doffing protective gear qualifies as "changing clothes," the Court analyzed the words' definitions in the context of the FLSA and Section 203(o), concluding that:

Applying these definitions to the facts of the case, the Court noted that the employees are required to don and doff 12 items of protective gear, nine of which (a flame-retardant jacket, pants, hood, hard hat, "snood," "wristlets," work gloves, leggings and steel-toed boots) fall within the definition of "clothes" and therefore are not compensable.

The remaining three items (safety glasses, earplugs and respirators), however, do not qualify as clothes and are not covered by the Section 203(o) exception. Evaluating whether the employees are entitled to compensation for the time spent donning and doffing these items, the Court expressly rejected the de minimis test used by the Seventh Circuit, which held that the time spent putting on and taking off the items was so minimal that it could be disregarded as compensable time.

The Court instead instructed that courts should determine whether, as a whole, the vast majority of the donning and doffing time involves clothing items or non-clothing items, as defined by the Court. If the vast majority of the time is spent on items that are clothes, then the entire period should qualify as time spent changing clothes under Section 203(o), even if all of the items are not technically "clothes," and vice versa.

The US Supreme Court relied on the district court's findings that the time employees spent donning and doffing safety glasses and earplugs was minimal, and the respirators were kept on location and only put on as needed. Since the employees spent a vast majority of their time donning and doffing items that are "clothes," the Supreme Court affirmed the Seventh Circuit's holding that the time was noncompensable under Section 203(o).

The US Supreme Court's decision provides clarification on the definition of "changing clothes" under Section 203(o) and makes clear that where a CBA excludes such time from working time, it is not compensable. However, unionized employers should note that the US Supreme Court assumed, without deciding, that the CBA at issue provided that the activities were noncompensable.