Employment Law Blog

News, trends and analysis in employment law and HR

Jan 29, 2014

ALERT: Supreme Court says CBA can exclude payment for putting on protective gear

Wage and Hour 

The U.S. Supreme Court ruled yesterday that an employer and union may agree that workers aren’t entitled to be paid for their time donning and doffing most protective safety gear at the beginning or end of the workday.

The U.S. Supreme Court ruled yesterday that an employer and union may agree that workers aren’t entitled to be paid for their time donning and doffing most protective safety gear at the beginning or end of the workday. Normally employers would have to pay for this time, if it is integral and indispensable to employees’ principal work activities. However, the federal Fair Labor Standards Act (FLSA) has an exception for unionized workplaces: Section 203(o) says the past practice or express terms of a collective bargaining agreement (CBA) can establish that time spent “changing clothes or washing at the beginning or end of each workday” doesn’t count as hours worked. The Court was asked to decide what qualifies as “changing clothes.”

Employees at a steelmaking plant claimed they should be paid for the time it took to don and doff protective safety gear, but the company said no, such gear qualified as “clothes.” The parties’ CBA said the company didn’t have to pay for time changing clothes.

The Supreme Court landed somewhere in between those two positions, but the result was that the employer won. The Court defined “clothes” as “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Considering the 12 most common kinds of protective gear used in the plant, the Court found that 9 of them qualify as clothes: “a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood [a hood that also covers the neck and upper shoulder area]; wristlets; work gloves; leggings; and metatarsal boots.” The Court determined that it didn’t matter whether the items were required by safety regulations. The last 3 items didn’t qualify as clothes, however: safety glasses, earplugs, and respirators. The Court said safety glasses and earplugs may cover part of the body, but they aren’t “commonly regarded as articles of dress.” A respirator definitely didn’t fulfill either requirement.

So did that mean that the time to put on the first 9 items would be unpaid according to the CBA, but the time to put on the last 3 items would be paid? No. The Court said it wouldn’t be practical to separately account for the time. As long as the “vast majority” of the time is spent putting on or taking off “clothes” as defined by the Court, the entire period qualifies for the FLSA Section 203(o) exception. The Court pointed out that the time to put on or take off safety glasses and earplugs is minimal. Putting on a respirator may take longer, but at this particular company the respirators were kept at the workstations and only used when needed, so the time would have been paid time anyway, as part of the regular workday. Therefore the vast majority of employees’ time putting on and removing protective safety gear before and after work was devoted to “changing clothes.” So, under the terms of the CBA, the employer didn’t have to pay for that time (Sandifer v. United States Steel Corp., US, Jan. 27, 2014).

Tips: Plaintiffs’ attorneys are eager to seize on situations where employees are engaging in uncompensated activities before or after their regular shifts. To protect your organization, you should evaluate whether these activities should be tracked and paid. For example, warming up a machine, booting up a computer, or coordinating with employees coming off shift are activities that may trigger liability under the FLSA if you’re not currently paying for the time. For more information, see our Legal Guide, “Compensation for Pre-Shift and Post-Shift Activities” (1179). If you have specific concerns or questions, don’t hesitate to contact your Vigilant staff representative.

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