Justices Scoff at Payment for Don and Doff

Employees who spend time putting on and taking off protective clothes, including flame-retardant outerwear, gloves, boot and hardhats, do not have to be paid for that time when it occurs before and after the work day, the U.S. Supreme Court ruled.

The Court ruled this week that Section 203(o)  of the Fair Labor Standards Act does not require employers to pay for the time it takes employees to change clothes, otherwise known as “donning” and “doffing”  unless the employees have negotiated otherwise in a labor agreement.  In doing so, the justices resolved a question that had split lower courts and made it difficult for employers to know how to act.

The case, Sandifer v. United States Steel Corp., dealt with about 800 current and former workers at the U.S. Steel plant in Gary , Ind., although employers from across the nation have been subject to similar accusations.  The workers claimed that they had to wear “personal protective gear” and not clothing. U.S. Steel countered that such protective gear was defined as clothing and, as a result, it should not have to pay the employees under the FLSA for changing.

The Supreme Court held that most of the protective gear that U.S. Steel employees wear falls within the meaning of the term “clothes” in Section 203(o).

“Dictionaries from the era of Section 203(o)’s enactment indicates that ‘clothes’ denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress,” Justice Antonin Scalia wrote for the majority. “Nothing in the text or context of Section 203(o) suggests anything other than the ordinary meaning of ‘clothes.’ ”

Scalia noted that while equipment such as earplugs, glasses and respirators are not clothes,  the “vast majority” of the employees’ time is spent in donning and doffing items that do qualify as clothes so the entire period should be considered “spent in changing clothes” under the statute and is non-compensable.

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