On January 27, 2014, the United States Supreme Court, in Sandifer et. al. v. United States Steel Corp. (US No. 12-417 1/27/14) resolved a long-standing and hotly-contested issue of importance to unions and employers, when it held that time spent donning (putting on) and doffing (taking off) required protective gear before and after shifts was not compensable under the Fair Labor Standards Act (FSLA) and the terms of a collective bargaining agreement.
Petitioner Sandifer and others filed a putative collective action under the Fair Labor Standards Act of 1938, seeking back pay for time spent donning and doffing pieces of protective gear that they assert respondent United States Steel Corporation requires employees to wear. Roughly 800 current and former workers at U.S. Steel’s Gary, Indiana, plant said flame-retardant jackets and pants, work gloves, wristlets, hard hats and other items they have to wear are “personal protective equipment,” not clothing. U.S. Steel disagreed, saying any wearable item is clothing. As a result, it said it should not have to pay unionized employees for “donning and doffing.”
The District Court granted U. S. Steel’s summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under 29 U.S.C. §203(o). It also assumed that any time spent donning and doffing items that were not “clothes” was “de minimis” and hence noncompensable. The Seventh Circuit affirmed.
Justice Scalia, writing the Opinion for the Supreme Court, held that all items worn by the petitioners constituted “clothes,” with the exception of safety glasses, ear plugs, and respirators. While it rejected the applicability of a de minimis doctrine in this context, the Court concluded that when the vast majority of time is spent donning and doffing clothes, the entire period qualifies as time spent “changing clothes,” even if workers must also spend a small amount of time putting on other protective equipment.
Sandifer makes clear that a distinction, for compensation purposes, will be made between donning and doffing primarily protective equipment (compensation ) as opposed to primarily protective clothing (not compensable). The bigger implication is that where the “vast majority” of an employee’s time before and after a shift is spent “changing clothes,” employers need not worry about the minor time that is also spent putting on and off “protective equipment.”
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