Employers Need Not Pay Employees for Changing In and Out of Protective Gear, Supreme Court Rules

Author: Michael Cardman, XpertHR Legal Editor

January 27, 2014

The US Supreme Court issued a ruling today that will make it easier for an employer to avoid paying unionized employees for time spent putting on and taking off certain protective gear.

The Fair Labor Standards Act (FLSA) allows an employer to exclude time spent "changing clothes" from working time as long as the employees agree to this in a collective bargaining agreement, or if there is a long history of non-payment in the industry and the employees knew about and agreed to the practice. 29 U.S.C. § 203(o).

In Sandifer v. United States Steel Corp., No. 12-417 (2014), a group of employees sued their employer, claiming the highly specialized gear they put on and took off did not count as clothes under the meaning of the statute.

But the Supreme Court rejected their claims, holding that the meaning of the word clothes is "items that are both designed and used to cover the body and are commonly regarded as articles of dress."

Most of the protective gear that the employees put on and took off - including flame-retardant jackets, pants and hoods; hardhats; and work gloves - counts as clothes under this definition, the Court held.

However, the Court's definition does not cover tools or many accessories, such as necklaces or knapsacks, that are not designed and used to cover the body.

As a result, some of the gear that the employees in Sandifer put on and took off - safety glasses, earplugs and respirators - did not constitute clothes.

But because they spent the vast majority of the period in question putting on and taking off clothes, the employer did not need to compensate the employees for time spent putting on and taking off the other items, the Court ruled.

The Court also rejected the employees' argument that they were not changing clothes because they put the protective gear on over their street clothes, rather than substitute the protective gear for their street clothes.

"One would not normally say he has changed clothes when he puts on an overcoat," the ruling states. "[The employees] conclude from this that items of protective gear that are put on over the employee's street clothes are not covered by §203(o). We disagree. Although it is true that the normal meaning of 'changing clothes' connotes substitution, the phrase is certainly able to have a different import."