Supreme Court Makes Donning/Doffing Cases Harder To Prove

The following article appears in the March issue of our newsletter, Public Safety Labor News. To find out more about the newsletter, including how to subscribe, please visit www.lris.com/public-safety-labor-news.

For over 50 years, the Supreme Court has held that the donning and doffing of equipment and work clothing before and after a work shift is compensable work under the Fair Labor Standards Act (FLSA). Section 203(o) of the FLSA provides an exception to that general rule, and provides that work does not include “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.”

After Section 203(o) was enacted, a good deal of litigation focused on what “clothes” were under Section 203(o). Some courts found that if whatever was donned and doffed had a protective function, it could not be considered “clothes” even if it were a form of an article of clothing. Other courts gave a broader reading to the term “clothes,” essentially rendering donning and doffing non-compensable for employees covered by a labor contract unless the labor contract required compensation for the activity.

In January 2014, the Supreme Court resolved the conflicts among the lower courts as to what “clothes” means in the context of Section 203(o). The Court largely sided with employer arguments, with the resulting decision likely to make donning and doffing cases harder to prove.

In an opinion written by Justice Antonin Scalia, the Court held that “dictionaries from the era of §203(o)’s enactment indicate that ‘clothes’ denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress. See Webster’s New International Dictionary of the English Language 507 (2d ed. 1950) (Webster’s Second) (defining ‘clothes’ as ‘[c]overing for the human body; dress; vestments; vesture’); see also, e.g., 2 Oxford English Dictionary 524 (1933) (defining ‘clothes’ as ‘covering for the person; wearing apparel; dress, raiment, vesture’). That is what we hold to be the meaning of the word as used in §203(o).

“This definition of ‘clothes’ does not exclude, either explicitly or implicitly, items with a protective function, since ‘protection’ and ‘comfort’ are not incompatible, and are often synonymous. A parasol protects against the sun, enhancing the comfort of the bearer – just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer.

“The argument made by the employees runs the risk of reducing §203(o) to near nothingness. The statutory compensation requirement to which §203(o) provides an exception embraces the changing of clothes only when that conduct constitutes an integral and indispensable part of the principal activities for which covered workmen are employed. But protective gear is the only clothing that is integral and indispensable to the work of factory workers, butchers, longshoremen, and a host of other occupations. The employees’ definition of ‘clothes’ would largely limit the application of §203(o) to what might be called workers’ costumes, worn by such employees as waiters, doormen, and train conductors. The employees insist that their definition excludes only items with some specific work-hazard-related protective function, but that limitation essentially abandons the assertion that clothes are for decency or comfort, leaving no basis whatever for the distinction.

“The statutory context makes clear that the ‘clothes’ referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the §203(o) exception. Moreover, even with respect to items that can be regarded as integral to job performance, our definition does not embrace the view, adopted by some Courts of Appeals, that ‘clothes’ means essentially anything worn on the body – including accessories, tools, and so forth. The construction we adopt today is considerably more contained. Many accessories – necklaces and knapsacks, for instance – are not ‘both designed and used to cover the body.’ Nor are tools ‘commonly regarded as articles of dress.’ Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.”

The Court concluded its opinion with an interesting twist on the de minimis rule, a rule applied by courts to find non-compensable small amounts of time. In comments that will surely be later litigated at length, the Court seemed to signal that lower courts had been giving too broad a reading of the de minimis rule, and had found too much time non-compensable. The Court commented that “some Courts declare non-compensable a few minutes actually spent on something other than clothes-changing – to wit, donning and doffing non-clothes items.

“We doubt that the de minimis doctrine can properly be applied to the present case. A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be 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. Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary 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.

“That said, we nonetheless agree with the basic perception of the Courts of Appeals that it is most unlikely Congress meant §203(o) to convert federal judges into time-study professionals. That is especially so since the consequence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining.

“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 §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.”

Sandifer v. United States Steel Corp., 134 S. Ct. 870 (2014).