On February 19, 2013, in Sandifer v. U.S. Steel Corp., the U.S. Supreme Court agreed to resolve a circuit split over the meaning “changing clothes” under the Fair Labor Standards Act (FLSA), 29 U.S.C. section 203(o).

Under the FLSA, employees are not entitled to compensation for time “spent in changing clothes . . . at the beginning or end of each workday” if excluded from working time under a collective bargaining agreement. While the meaning of “clothes” might seem obvious, the FLSA does not provide a definition and circuit courts have provided differing interpretations.

In Sandifer, U.S. Steel employees sued their employer for the time spent putting on and taking off protective gear in a locker room, and walking to and from the locker room to their work stations. The employees worked under a collective bargaining agreement, which did not require compensation for changing clothes. The district court found that the workers were not entitled to compensation under section 203(o).

On appeal, the Seventh Circuit held that the clothes at issue in this case – flame-retardant pants and jacket, work gloves, work boots, a hard hat, safety glasses, ear plugs, and a hood – are clothes under section 203(o), and therefore the time spent putting on and taking off such items are not compensable. To the extent the hard hat, glasses, and ear plugs were not technically “clothes,” the court noted that putting on these items did not qualify as compensable “work” because the time spent in such activity was de minimis. Accordingly, U.S. Steel was not required to compensate its employees for the time spent changing into and out of work clothes.

The conclusion reached by the Seventh Circuit in Sandifer conflicts with Ninth Circuit authority holding that “special protective gear [is] different in kind from typical clothing” and is not “clothes” under section 203(o). Still, the Fourth, Sixth, Tenth, and Eleventh Circuits have adopted a different definition – one that includes anything one “wears,” including “accessories” such as ear plugs and safety glasses.

The time it takes for an individual employee to don or doff work related clothing may seem inconsequential, but when such time is aggregated in class and collective actions it can be significant. Thus, the Supreme Court’s resolution of what constitutes “changing clothes” in the context of section 203(o) may have a significant impact on employers nationwide.

Photo credit: Matt Collingwood