United States: Supreme Court Finds Middle Ground On Definition Of "Clothes" Under The FLSA

Last Updated: January 29 2014
Article by Tammy McCutchen and William F. Allen

On Monday, January 27, 2014, in unanimously affirming the Seventh Circuit's judgment in favor of U.S. Steel Corporation in Sandifer v. United States Steel Corp., the Supreme Court forged a middle ground on the meaning of the term "changing clothes" in section 3(o) of the Fair Labor Standards Act (FLSA).  The outcome of this case will have a significant impact on unionized employers in a wide variety of industries where workers change in and out of protective and/or sanitary clothing at the start and end of their workdays, including food processing, light and heavy industrial manufacturing, chemical processing, energy production and health care.  However, the Supreme Court's opinion also leaves some unanswered questions on the compensability of clothes changing under section 3(o).

Section 3(o)

Under the FLSA, employees must generally be paid for time spent donning and doffing protective clothing if they are required by law or the employer to change into such clothing at the work site.  However, section 3(o) of the FLSA, passed by Congress in 1949, provides that in a unionized setting time spent "changing clothes" may be excluded from compensable time by a collective bargaining agreement or by a custom or practice of non-compensation for such activities.  

The Sandifer Case

In Sandifer, current and former U.S. Steel unionized employees claimed they were not properly compensated under the FLSA for pre- and post-shift time spent donning and doffing items such as flame-retardant jackets and pants, hoods, hard hats, gloves, wristlets, leggings, steel-toed boots, safety glasses, and ear plugs, and for time spent walking from the locker room to their work stations after changing clothes.  Since 1947, two years before enactment of section 3(o), the collective bargaining agreement (CBA) between U.S. Steel and the steelworkers provided that the company would not compensate employees for "time spent in preparatory and closing activities."  In 2008, after Sandifer was filed, the union and U.S. Steel negotiated a new CBA in which the union agreed to stronger and more specific language confirming that employees would not be compensated for time spent "donning and doffing protective clothes."

The district court granted summary judgment in U.S. Steel's favor on the issue of whether the various items were "clothes" within the meaning of FLSA section 3(o), and therefore determined the employees need not be paid for time spent donning.  The district court also ruled that if hardhats, safety glasses and ear plugs were not clothes, the time spent donning and doffing such items was de minimis and thus not compensable under the FLSA. 

On appeal, the Seventh Circuit affirmed the district court's ruling, including its de minimis finding.  The Seventh Circuit's decision, however, conflicted with Ninth Circuit authority1 in a meatpacking case holding that "special protective gear is different in kind from typical clothing" and is not "clothes" under section 3(o).  The Fourth, Sixth, Tenth, and Eleventh Circuits had adopted a different definition of clothes that includes anything one "wears," including "accessories" such as ear plugs and safety glasses. 

The Supreme Court's Decision

At oral argument on November 4, 2013, the Supreme Court wrestled with the different definitions of "clothes" proposed by U.S. Steel and its employees.  The employees argued an item should be excluded "if it is worn to protect against a workplace hazard and was designed to protect against hazards."  The employer argued for inclusion of "work outfit[s] industrial workers were required to change into and out of to be ready for work."  Filing an amicus brief supporting U.S. Steel, the government offered a new middle ground alternative by arguing that,  although some protective gear – such as safety glasses and ear protection – are not clothes, donning and doffing such items are "ancillary" to changing clothes and thus non-compensable.

The Supreme Court rejected the definition of clothes proposed both by the employees and the employer.  The Court held that the employees' effort to exclude all protective clothing from section 3(o) was too narrow, finding their definition "runs the risk of reducing §203(o) to near nothingness."  But, the Court also characterized the "entire outfit" definition proposed by the employer to be a "capacious construction."

Instead, writing for the unanimous court, Justice Scalia resorted to the "fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted taking their ordinary, contemporary, common meaning."  Referencing contemporaneous dictionaries, the Court held that "clothes" means "items that are both designed and used to cover the body and are commonly regarded as articles of dress."  This definition, the Supreme Court stated, "leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices" (such as a wristwatch), but "does not exclude all objects that could conceivably be characterized as equipment."  The Supreme Court rejected the view embraced by some courts of appeals that clothes meant anything worn on the body, including tools and accessories, and specifically singled out necklaces, knapsacks, knife holders, and tools as not qualifying as clothes.

Next, addressing the meaning of "changing" clothes, the Supreme Court rejected the employees' argument that protective gear put on over a worker's street clothes is not covered by section 3(o).  Rather, the Court held, changing clothes includes not only putting on substitute clothing but also "altering dress." 

Applying these principles to the 12 specific items at issue in the case, the Supreme Court found the following nine items to be "clothes":  (1) flame-retardant jackets; (2) flame-retardant pants; (3) flame-retardant hoods; (4) a hard hat ("simply a type of hat"); (5) snoods (the industrial equivalent to a skier's "balaclava"); (6) wristlets ("essentially detached shirt-sleeves"); (7) work gloves; (8) leggings ("much like traditional legwarmers, but with straps"); and (9) metatarsal boots ("just a special kind of shoe").  The Court found that these items qualified as "clothes" because they were "both designed and used to cover the body and commonly regarded as articles of dress."  On the other hand, the Court concluded safety glasses, ear plugs and a respirator are not "clothes" under section 3(o). 

The DeMinimis Standard

Addressing the compensability of donning and doffing the non-clothes items (safety glasses, ear plugs and a respirator), unlike the Seventh Circuit, the Supreme Court found that a "de minimis doctrine does not fit comfortably within the statute at issue here, which, it can be fairly said is all about trifles—the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs."  The Court found no basis in section 3(o) for distinguishing between the minute or so necessary to put on glasses from the minute or so to put on a snood:  "If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work." 

Instead, recognizing that "it is most unlikely Congress meant § 203(o) to convert federal judges into time-study professionals," the Supreme Court crafted a rule that focused on whether the pre-shift or post-shift period "on the whole" can be characterized as "time spent in changing clothes or washing."  Thus, if the "vast majority of the time is spent donning and doffing 'clothes'," as defined by the Supreme Court, then "the entire period qualifies, and the time spent putting on and off other items need not be subtracted."  Conversely, if the "vast majority of the time in question" is spent putting on and off equipment or other non-clothes items, then the entire period is not covered by section 3(o). 

Future Implications of Sandifer

Sandifer seems a substantial victory for unionized employers, particularly where they have either expressly negotiated or established a custom and practice of not compensating for "donning" and "doffing" time.  The closer an item can be characterized as something akin to ordinary clothing – such as jackets, hats, shoes, and gloves – the more likely it will be regarded as "clothes."  Also, in situations where the "vast majority" of pre-shift and post-shift time at issue is spent donning and doffing these clothing items, employers may preserve their agreements and practices, and will not be subject to substantial back-pay liability.

Yet, despite the Court's clarification of the definition of clothes, substantial uncertainty remains in the application of the Sandifer holdings.  While Sandifer makes clear that time spent donning and doffing safety glasses, earplugs, respirators and tools (but perhaps not the tool belt) will weigh against application of section 3(o), the decision only classifies the ends of the spectrum, i.e., when the "vast majority" of time is spent on items that are "clothes" or items that are not.  In the middle lies an indeterminate span.  Is it the 30-70% range?  40-60%?  In those cases, district courts may be forced to rely upon the "time-study professionals" to assess the percentage of time spent on clothes changing, or turn to juries to resolve factual disputes.

Complicating that inquiry, Sandifer's item-by-item analysis also still leaves lower courts to determine whether a whole host of items are "clothes."  Although the definition of "clothes" in Sandifer is surely helpful, lower courts may still be called upon to determine whether items not specifically at issue in Sandifer are clothing for purposes of section 3(o).  For example, are hairnets more like a hard hat (clothes) or safety goggles (not clothes)?  Where such items take little time to put on or take off, their classification may not matter due to the "vast majority" rule, but in other circumstances it may push the inquiry into the middle span between the spectrum poles.

Footnote

1  Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003).  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Tammy McCutchen
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions