Q&A with Josh Solberg
Some clothes changes at work
may be legally compensable
Q: Should employees be paid for time spent changing into (donning) and out of (doffing) clothes and personal protective equipment at the beginning and end of each workday?
A: There is no uniform law or standard in federal jurisdictions. Generally, donning and doffing clothing and personal protective equipment (sometimes referred to simply as PPE) is compensable if it is “integral and indispensable” to a “principal activity.” If it is merely “preliminary to or postliminary to (the) principal activity,” such time is not compensable. That is an overly complicated way of saying that “it depends.” As a general rule, an employer should take a close look at the issue any time they have employees changing into clothes or PPE at work when the employees are not being compensated for that time.
Q: Does it matter if an employer has a unionized workforce?
A: Potentially. Under 29 U.S.C. Statute 203(o), a union and an employer can, pursuant to a bona fide collective-bargaining agreement, agree that “time spent in changing clothes … at the beginning or end of each workday” isn’t compensable. In other words, in the case of a unionized workforce, the compensability of time spent changing clothes is a subject committed to collective bargaining.
Q: What is “changing clothes” under Section 203(o)?
A: That was the primary issue recently decided by the U.S. Supreme Court in the case of Sandifer v. U.S. Steel Corp., No. 12-417, on Jan. 27. In Sandifer, the plaintiffs filed a collective action seeking wages for time spent donning and doffing a variety of work clothes and PPE (such as flame-retardant pants, a jacket, gloves, and other items). The Supreme Court interpreted the terms “changing” and “clothes” using their ordinary and common meanings to mean, essentially, to change or alter items that are both: designed and used to cover the body and are commonly regarded as articles of dress. In so doing, the Supreme Court broadly construed the phrase providing broad protection for employers when Section 203(o) applies. Instead of electing to treat things like, say pants and jackets on the one hand, and a “snood” (hood that covers the neck and shoulder area) and “wristlets” (detachable shirt sleeves), on the other, differently, the court’s broad interpretation allowed most items to fall within the term “clothes” and to fall within 203(o). However, the court noted the term “clothes” isn’t without limitation — and excluded from the definition things like safety glasses and ear plugs. This could have allowed the court to find such time as compensable or at least require the court to look at the matter closely. Nevertheless, the court interpreted 203(o) broadly, holding that “if the vast majority of the time is spent in donning and doffing clothes … the entire period qualifies ...” and the time is not compensable. The specific holding of Sandifer is limited to unionized workforces where a collective bargaining agreement doesn’t provide for compensation to employees for changing clothes.
Q: Are there penalties for not compensating employees for time spent donning and doffing if such time is compensable?
A: Yes, there can be steep penalties. The FLSA (Fair Labor Standards Act) allows for employees to seek wages that should have been paid for up to three years. Additionally, the FLSA allows employees to obtain liquidated damages under certain circumstances that can result in an award that equals the amount of wages owed (i.e., the employee gets twice as much as they were originally owed). Successful employees also can be awarded their attorneys’ fees and costs.
PAULA BURKES, BUSINESS WRITER