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The Meaning of 'Clothes'
A case pending before the Supreme Court is putting a new spin on the question, “What are you wearing?” In Sandifer v. U.S. Steel Corp., No. 12-417, a group of unionized steelworkers at a Gary, IN, factory claim that their employer violated the Fair Labor Standards Act by failing to pay them for time spent changing into flame-retardant suits, steel-toed boots, hardhats, gloves, and other protective items, even though their union has agreed to exclude that time from the compensable workday. The case turns on whether the protective gear the employees wear can be considered “clothes” under ' 203(o) of the FLSA.
Section 203(o)
Section 203(o) allows unions and employers to agree to exclude from the compensable workday time spent by employees “changing clothes or washing at the beginning or end of each workday.” If an employer (or the law) mandates use of protective gear for an employee's job and ' 203(o) does not apply, more often than not the employee must be paid for his or her “donning and doffing” time pursuant to a line of case dating back to the Supreme Court's 1956 decision in Steiner v. Mitchell. To take advantage of ' 203(o), either the terms of a collective bargaining agreement or a custom or practice under a collective bargaining agreement must provide for that time to be excluded. The section, which was passed in 1949 as part of a package of FLSA amendments known as the “Portal-to-Portal Act,” was intended to allow unions and employers to use the compensability of certain pre- and post-shift activities as a bargaining chip in their negotiations.
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