“Changing Clothing” Can Include Protective Gear

U.S. Supreme Court Puts An Issue To Rest – “Changing Clothes” Can Include the Donning and Doffing of Protective Clothing

By Stephen R. McCutcheon, Jr., Attorney at Law

Last week the U.S. Supreme Court clarified something that non-lawyers would likely believe does not need Supreme Court intervention – the meaning of “changing clothes.”  But, the meaning of “changing clothes” under the Fair Labor Standards Act (“FLSA”) has been the subject of much litigation, and the Department of Labor has flip-flopped in its interpretation of what constitutes “changing clothes.”

In Sandifer v. U.S. Steel Corporation, No. 12-417, the Supreme Court provided certainty over what constitutes “changing clothes,” and held that the donning and doffing of protective gear such as jackets, pants, hoods, gloves and other types of protective gear can constitute “changing clothes.”

From its inception in 1938, the FLSA, which governs the minimum wages and maximum hours of non-exempt employees in industries affecting commerce, contained a number of ambiguities that spawned litigation over precisely what time was compensable.  Congress amended the FLSA in 1949 to allow a union and an employer to adopt a collective bargaining agreement and determine for themselves whether time spent changing clothes was compensable time.  Still, the concept of what exactly constituted “changing clothes” continued to elude the courts, and was the subject of changing definitions from the Department of Labor.

This judicial uncertainty and flip-flopping by the Department of Labor left employers in a difficult situation.  What may have been lawful one year could become unlawful the next with the changing of the tide in Washington D.C., and what was lawful in one part of the country could be unlawful in another.  Although the U.S. Supreme Court did not address the issue of whether the Department of Labor is entitled to any measure of deference when its interpretation of the law changes with each incoming presidential administration, it did put to rest what constitutes “changing clothes.”  According to the U.S. Supreme Court, the donning and doffing of protective gear qualifies as “changing clothes” within the meaning of § 203(o) of the FLSA, and a union and an employer can bargain over whether the time spent donning and doffing such gear is compensable time.

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