Donning, Doffing, and CBAs

Although not as prevalent as they once were, donning and doffing cases are still being hotly contested around the country. Recently, a donning and doffing case from Indiana found its way to the United States Supreme Court.

Initially, I should explain what donning and doffing is. Those are the terms the courts use for the time employees spend taking on and taking off clothing and protective gear in their workplaces. While most employees don’t experience this, many factory, laboratory, and agricultural jobs require employees to don protective clothing or gear before they begin working and to doff the clothing and gear once they have finished working. As a general rule, donning and doffing time is compensable so many employers allow employees to clock in prior to changing into the clothing and gear and clock out after it has been removed. But not all employers do, and that is where donning and doffing cases often arise.

In Sandifer, et. al. v. United States Steel Corp., the company collectively bargained with its employees via their labor union that the time employees spent donning and doffing would not be compensable. Under Section 203(o) of the FLSA, employers and employees can agree, via the collective bargaining process, whether “time spent in changing clothes . . . at the beginning or end of each workday” is compensable. So case closed, right? Not really.

Sandifer and his attorneys challenged whether the activities of he and his co-workers fit within the FLSA’s definition of “changing clothes.” Sandifer’s contention was that the act of donning and doffing protective gear, which included a flame-retardant jacket, pair of pants, a hood, a hardhat, a snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs, and a respirator, was neither changing nor exclusively clothes-related. In other words, although the union had agreed via a collective bargaining agreement (“CBA”) that donning and doffing time was not compensable, Sandifer contended the union’s power to waive compensation only extended to changing clothes and did not cover the types of activities in which he and his co-workers engaged on a daily basis. After losing in the United States District Court for the Northern District of Indiana and the United States Court of Appeals for the Seventh Circuit, the United States Supreme Court agreed to hear Sandifer’s case.

The first issue the Supreme Court addressed was Section 203(o)’s use of the word clothes. The Court determined that the plain meaning of the word clothes encompassed protective clothing such as the flame-retardant jacket, pair of pants, hood, hardhat, snood, wristlets, work gloves, leggings, and metatarsal boots donned by Sandifer and his co-workers. However, the Court disagreed with U.S. Steel Corp.’s argument that the word clothes also covered all protective gear, such as safety glasses, earplugs, and a respirator.

The second issue the Supreme Court addressed was Section 203(o)’s use of the word changing. Sandifer’s argument was that changing involved substituting one piece of clothing for another and, therefore, would not include donning and doffing items over one’s existing clothing or in addition to the items already worn by an employee. The Supreme Court rejected this argument and held that altering the items being worn falls within the definition of changing in Section 203(o).

The Sandifer decision provides excellent guidance for situations involving CBAs that deem donning and doffing time as noncompensible. As the Supreme Court explained: “The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not qualify as ‘time spent in changing clothes’ under Section 203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”

Although this distinction proved immaterial to Sandifer’s case based on a finding that the time spend donning the protective gear was de minimus (a common phrase in FLSA cases used to denote an insignificantly small amount of time) when compared to the time spent donning and doffing clothes, it could be important in other cases where employers and labor unions have agreed to make donning and doffing time noncompensible but where a significant potion of said time is not spend donning and doffing clothes, but rather equipment.