There’s been a lot of controversy over the years surrounding the issue of “donning and doffing” — that is, time spent putting on required uniforms, safety equipment and other gear at the beginning of a work shift, and taking it off again at the end of the shift — time which normally must be paid.
At issue was a clause in a section of the Fair Labor Standards Act (FLSA) which was added to the law in 1949. In Section 203(o), the law allows an employer to not pay workers for time spent “changing clothes” before and after their shift — if the employees agree as part of a collective bargaining agreement (CBA) that this “donning and doffing” time is not compensable.
Just to Make Sure We’re Clear…
Under the FLSA “continuous workday” rule, time spent changing into and out of a uniform, protective gear or other required clothing, accessories or tools would normally be compensable. (The only time it wouldn’t be is if we’re talking about what the laywers term a de minimis amount of time — in other words, something that happens so quickly it doesn’t really matter. For instance, if we’re just talking about grabbing a lab coat and pair of protective goggles off the rack and putting them on, such that you could already be walking to/from your work space while you’re still “donning” or “doffing,” those few seconds you pause to grab the gear probably would be considered de minimis, and thus not compensable.)
So in most cases you can’t just decide on your own that you’re not going to pay your workers for the time it takes them to change into protective gear or a required uniform before they start work. In the absence of a CBA that says otherwise, you most likely are required to pay for this time.
The Issue at Hand
In this case, there was a CBA that exluded time spent changing before and after the shift from the workers’ paid time.
So, what’s the problem? Well, the law specifically refers to time spent “changing clothes.” Some union members have filed lawsuits claiming their protective gear is not “clothing” and so the time spent putting it on and taking it off should be paid, regardless of what the applicable CBA says.
This is not the first time workers have made this claim. The lower courts have been divided on the issue, some courts coming down in favor of the employer, others in favor of the employees. So in the case of Sandifer v. United States Steel Corp., the U.S. Supreme Court decided to tackle the issue, and (with any luck) resolve it once and for all.
In this case, workers donned a whole raft of protective gear: flame-retardant jacket, pants and hood, work gloves, a hard hat, special boots, safety glasses, earplugs, a respirator and more. The employer argued they should not have to pay for the time spent changing because the employees (through their union) had agreed the time was not compensable. The workers argued this protective gear was not “clothing,” so they should be paid for the time putting it on and taking it off.
The Supreme Court decided that most of the protective gear is clothing, using the common definition of “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The safety glasses, earplugs and respirator are not clothing under this definition, but the amount of time spent putting them on and taking them off is de minimis, especially when compared to the time required to don and doff all the rest of that stuff.
They also decided it doesn’t make a difference if the articles of clothing are worn next to the body or if they’re placed on top of other articles of clothing (such as a jumpsuit worn over one’s street clothes).
With a bit of luck, perhaps this will bring some clarity and consistency to the issue of “donning and doffing.”
What about you? Is your company covered by a CBA that excludes time spent changing clothes? If not, does the company pay workers for the time spent “donning and doffing”?