On Monday of last week, the U.S. Supreme Court issued a new ruling on “donning and doffing” of work-related clothing. The decision has added some clarity as to “compensable” versus “non-compensable” time, but its application is limited to union employers, and it still leaves room for debate as to where you draw the line.
Under federal law, a union employer is not required to pay for “time spent in changing clothes or washing at the beginning or end of each workday,” provided that such time is “excluded from measured work time” by virtue of a collective bargaining agreement, practice or custom. This seems simple enough. But, in the work setting, what are “clothes”? And what constitutes “changing” clothes? What if I am wearing clothes for “protection,” versus “decency or comfort”? And what if I am just “adding” clothes, as opposed to taking something off and replacing it with something else?
Looking to the dictionary, the Court determined that the term “clothes” means anything that is “both designed and used to cover the body” and is “commonly regarded as dress.” It includes clothes that are worn for “protection,” but does not include everything that is “worn on the body,” such as “accessories” and “tools.” The Court construed “changing clothes” to mean “altering” ones clothing, either by “substituting one item for another” or putting “clothes on over other items already worn.”
Applying these definitions that Court found that flame retardant jackets, protective pants, protective hoods, hardhats, protective snoods, wristlets, work gloves, protective leggings and metatarsal boots fell into the category of clothes. The Court found that safety glasses, ear plugs and respirators fall into the category of equipment, and not clothes.
The Court went on to state that when an employee spends time donning both clothes and non-clothing items, compensability will depend on how much time is spent on each. “If an employee devotes the vast majority of time in question to putting on and off equipment or other non-clothes items,” none of the time would qualify as “time spent in changing clothes.” Conversely, “if the vast majority of time is spent donning and doffing ‘clothes’,” as defined by the Court, “the entire period qualifies, and the time spent donning and doffing other items need not be subtracted.”
Two things to keep in mind about this decision. First, the Court was dealing with a union employer and a union contract that specifically covered donning and doffing. The outcome would be different in a non-union setting or in a union setting with no contract or past practice on donning and doffing. Second, the Court gave no clear guidance as to what constitutes the “vast majority” of time. Vast means “huge, “enormous,” “immense” and “of very great extent.” Something less than 100%, but more than 50%. Between those two guide posts, employers and unions will need to use their best judgment.