Changing Clothes—Changing Meanings?

On January 27, 2014, the United States Supreme Court decided in Sandifer v. U.S. Steel that donning and doffing protective gear falls within the ordinary definition of changing clothes at the beginning and end of a work day and is therefore not compensable time under the Fair Labor Standards Act (FLSA).


Donning and doffing has been a hot area of wage and hour law that often leads to individual and class action lawsuits resulting in significant potential liability and litigation costs for employers. Previously, under the Fair Labor Standards Act (FLSA), employees had to be paid for putting on and taking off (i.e., “donning and doffing”) safety gear if  (1) the gear is required by law or (2) the employer requires employees to change into such clothing at the work site because such activity is a principal activity, meaning that it was indispensable to the work. Moreover, an employer did not need to compensate employees for time spent changing clothes if it was excluded from compensable time by a collective bargaining agreement (“CBA”) or by a custom or practice of non-compensation for such activities.

There have been a plethora of donning and doffing cases which involved whether the Fair Labor Standards Act and/or state laws required employers to pay employees for time spent putting on and taking off certain work clothes and protective equipment.  An employer did not need to compensate employees when the employee was altering dress before or after work and it was not a principal activity to the employee’s work. This activity was considered to be within the ordinary meaning of changing clothes, and therefore was not compensable.

The Case

In Sandifer v. U.S. Steel, a group of 800 steelworkers at a Gary, Indiana factory claimed they should receive back pay for time spent changing into their protective gear, which included flame-retardant suits, steel-toed boots, hardhats, safety glasses, and gloves, even though that time was excluded from the compensable workday under their CBA. The plaintiffs argued that putting on protective gear for work should be compensable because it was a time consuming process to dress and undress. The plaintiffs’ contended that items intended to protect the worker from workplace hazards should not be included in the general definition of changing clothes.  The U.S. Court of Appeals for the Seventh Circuit rejected this assertion and reasoned that it took such little time to put on the protective gear that they should be included in the general definition of changing clothes.

U.S. Steel contended that this donning and doffing time would have otherwise been compensable under the FLSA since it is a principal activity; however, is not compensable under a provision of its CBA, which stated that time spent changing clothes at the beginning and end of the work day is not compensable. The Supreme Court ruled that time changing in and out of protective gear is not sufficiently different from changing clothes; therefore, it fell within the ordinary meaning of ‘changing clothes’ and was not compensable. The Court defined ‘changing clothes’ as substitution and altering dress. In doing so, the Court broadened the definition of changing clothes to include protective gear.

The Court also accepted the ordinary meaning of ‘clothes,’ as ‘items that are both designed and used to cover the body and are commonly regarded as articles of dress.” The Court rejected the petitioners assertion that the term ‘clothes’ is too indeterminate and needed protective gear to be distinguished from the ordinary meaning of clothes, so that donning and doffing protective gear would be compensable. The Court did not subscribe to the petitioners’ argument that wearing clothes out of comfort is different from wearing clothes for protection from workplace hazards. It found this definition to be too narrow  because protection and comfort are not mutually exclusive concepts. They reasoned that clothing or gear that provides protective functions can also lead to comfort. For example, the Court noted that a pair of work gloves protects against scrapes and cuts, which enhances the comfort of the wearer. Therefore, the Court ruled that this narrow definition would not apply.

While the Court decided that flame retardant jackets, pants and hoods, a hardhat, snood, work gloves, leggings, and metatarsal boots all fit within the interpretation of clothes, it did not agree that glasses, earplugs, and a respirator are commonly regarded as articles of clothes. The Court stated that it would leave it up to lower court judges to determine whether these items must compensable time. However, it stated that lower courts are not precluded from using the de minimus rule, which states that minor trifles that are a few seconds or minutes of work beyond the scheduled working hours may be disregarded and treated as non-compensable.

Impact on Employers

The outcome of the case has a significant impact on unionized employers in a wide variety of industries where workers change in and out of protective clothing at the start and end of their workdays, including food processing, police and firefighters, light and heavy industrial manufacturing, chemical processing, energy production, and health care. This decision makes it more difficult for unionized workers to seek pay for time spent changing clothes before and after work if it is not specifically addressed in their CBA