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Is An Employee On The Clock While Getting Dressed in Work Gear?

Written by: Charla Bizios Stevens

Published in the New Hampshire Business Review

Joe is the human resource manager for a manufacturing facility in New Hampshire. The company provides its employees, particularly those who work in safety sensitive positions, with personal protective equipment at no charge to them. For workers in the foundry, this equipment includes protective clothing, footwear and headwear which can be quite cumbersome and time-consuming to put on. Joe is wondering whether he needs to pay his foundry employees for the time they spend dressing and then walking the distance to the foundry from the employee locker room.

The United States Supreme Court made an attempt in its January 27, 2014 decision in the case of Sandifer v. U.S. Steel to provide some clarification to this question. To the surprise of many, the Court which is often divided by party lines on employment issues, decided unanimously in favor of the employer.

The case arose when Sandifer and his co-workers filed an action against U.S. Steel seeking back pay for the time they spent “donning and doffing” their protective gear. The gear at issue included respirators, hardhats, chaps and other similar items. The employees were required by U.S. Steel to wear this apparel for safety reasons. The collective bargaining agreement (“CBA”) to which the employment relationship was subject specifically excluded the time spent “changing clothes” from time worked and compensated. The Fair Labor Standards Act (“FLSA”) generally requires that employees be compensated for donning and doffing time but was amended to allow this issue to be subject to collective bargaining in a way that issues like overtime pay and minimum wage are not.

There was no dispute that the FLSA would have required payment for donning and doffing time absent an agreement to the contrary and that the CBA specifically excluded “changing clothes” from time for which employees were to be compensated. The Supreme Court, therefore, was required to decide whether the protective gear at issue fell within the definition of “changing clothes.”

Justice Scalia, in writing the opinion for the Court, determined that clothes would be given its usual meaning and denote items that “are both designed and used to cover the body and are commonly regarded as articles of dress.” In addition, changing clothes would refer to putting on and taking off that clothing.

The Court concluded that nine of the twelve items in controversy fell within the definition of clothing: flame-retardant jacket, pants, and hood; hardhat, snood, work gloves, leggings, metatarsal boots, and wristlets. The remaining items, safety glasses, earplugs and respirator are not items of clothing. The lower court concluded that the time donning and doffing items such as safety glasses and earplugs was minimal in comparison to the remaining items and therefore, the entire period of time spent getting ready for work was not compensable. The Supreme Court affirmed.

So, what does this mean for Joe and other New Hampshire employers? The general rule under the FLSA has not changed. Unless the time spent donning and doffing is specifically excluded from compensable time as a matter of collective bargaining, it is work time for which employees must be paid. However, employers are free to bargain this issue, and the Court has now provided clarification on what constitutes clothing and changing clothing.

Charla Bizios Stevens is a shareholder in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at [email protected] or followed on Twitter at @charlastevens.  She also contributes regularly to www.employmentlawbusinessguide.com.


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