The lawsuit was brought by current and former steelworkers who wanted back pay for time spent putting on twelve items of protective clothing for their jobs before their shifts and time spent removing the clothing after their shifts. Their collective bargaining agreement excluded this time from compensable working hours. The controlling statute provides:
“Hours Worked.—In determining for the purposes of [the
minimum-wage and maximum-hours sections] of this title the hours for which an
employee is employed, there shall be excluded 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
applicable to the particular employee.” 63 Stat. 911, 29 U. S. C. §203(o).
Justice Scalia wrote the opinion and discussed the
legislative history of this exception for “changing clothes” in the FLSA. The Court rejected the plaintiffs’ argument
that the protective “clothing” was not “clothes” because the clothing was worn
for protection instead of comfort. The
Court similarly rejected the plaintiff’s argument that they were not “changing”
clothes when the items were put on top of their regular clothes instead of “substituting”
for their street clothes. In essence,
the plaintiffs argued that the exception covered only employees who changed
into uniforms or costumes as part of their job and not to employees who put on
protective gear.
While the Court found that 9 of the 12 disputed items
constituted clothes for purposes of the FLSA exception, it concluded that three
of the remaining items did not constitute clothes:
The remaining three items, by contrast, do not satisfy our
standard. Whereas glasses and earplugs may have a covering function, we do not
believe that they are commonly regarded as articles of dress. And a respirator
obviously falls short on both grounds. The question is whether the time devoted
to the putting on and off of these items must be deducted from the
noncompensable time. If so, federal judges must be assigned the task of
separating the minutes spent clothes-changing and washing from the minutes
devoted to other activities during the period in question.
The Court declined to find that the employees were not
entitled to be compensated for the time to don and doff these items because of
the minimal time involved:
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. We think it is possible to give the text of §203(o) a
meaning that avoids such relatively inconsequential judicial involvement in “a
morass of difficult, fact specific determinations,”
. . . . Section 203(o),
by contrast, is addressed not to certain “activities,” but to “time spent” on
certain activities, viz., “changing clothes or washing.” Just as one can speak
of “spending the day skiing” even when less than-negligible portions of the
day are spent having lunch or drinking hot toddies, so also one can speak of
“time spent changing clothes and washing” when the vast preponderance of the
period in question is devoted to those activities. To be sure, such an
imprecise and colloquial usage will not ordinarily be attributed to a statutory
text, but for the reasons we have discussed we think that appropriate here.
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. (emphasis added).
In the present case, the District Court stated that “the time
expended by each employee donning and doffing” safety glasses and earplugs “is
minimal,” . . . As for respirators, the District Court stated
that they “are kept and put on as needed at job locations,” 2009 WL 3430222,
*2, which would render the time spent donning and doffing them part of an employee’s
normal workday and thus beyond the scope of §203(o).
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
