In recent years, employees seeking compensation for time spent “donning and doffing” — that is, changing into and out of — required protective or health/safety attire have plagued the food industry with lawsuits.
Most cases involve meat and poultry producers, but fresh-cut produce and fresh-frozen produce companies have been targeted as well.
Fresh produce companies that require employees to wear health/safety gear — such as gloves, shoe-coverings and hairnets — should be aware of a recent U.S. Supreme Court decision concerning compensation for time spent donning and doffing required clothing.
In Sandifer v. United States, the Supreme Court ruled employers are not required to compensate employees for time spent donning and doffing many types of protective gear.
Consequently, employers and unions are free to negotiate, as part of a collective-bargaining agreement, whether time spent dressing and undressing in required apparel is compensable.
The law the court was interpreting in Sandifer is the Fair Labor Standards Act, the national minimum wage and overtime statute.
The FLSA is a federal statute originally enacted in 1938 to establish equitable working conditions.
Early on, employees used the FLSA to sue employers for compensation for time at work spent “putting on aprons and overalls.”
In response to the onslaught of such suits, Congress added an exception to the FLSA, Section 203(o), to exclude time spent changing clothes or washing at the beginning or end of each workday from compensable hours if the exclusion was included in an agreement or through common practice.
In Sandifer, U.S. Steel employees sought compensation for extensive time spent donning and doffing protective gear.
The Supreme Court defined what constitutes “changing clothes” for purposes of the Section 203(o) exception. It rejected the plaintiffs’ argument that the exception doesn’t include gear used to protect against workplace hazards; rather, the court interpreted “clothes” to mean “items that are both designed and used to cover the body and are commonly regarded as articles of dress,” based on the ordinary definition of clothes in 1949, the year Congress added Section 203(o) to the FLSA.
The plaintiffs also argued they didn’t “change” their clothes when wearing the protective gear because the gear was put on over, rather than substituted for, their own clothes.
The court rejected that argument, concluding that “changing” clothes instead referred to “altering dress,” meaning that whether employees actually exchange their own clothes for protective gear makes no difference for purposes of the exception. This may be especially relevant for fresh-cut facilities, where many employees put on smocks or gowns over their own clothing.
Whether the Sandifer decision applies to your company’s labor practices may depend on the type of gear your employees wear.
The Supreme Court held that the time spent by the U.S. Steel employees putting on extensive protective gear — including a flame-retardant jacket, pants and hood, a snood (a covering for the face), gloves, leggings and boots — squarely fit within the definition of clothes because those items “are both designed and used to cover the body and are commonly regarded as articles of dress.”
The court distinguished the glasses, earplugs and a respirator from the definition of clothes, meaning time spent putting on those items would not be included in the Section 203(o) exception, and thus was possibly compensable even if the agreement said otherwise.
It reasoned that if the vast majority of time spent donning and doffing required gear was for items that met the definition of clothes, even if some non-clothing items (such as a hardhat or glasses) were included, the entire time qualified for the exception and was not compensable. But, if the vast majority of time donning all the required gear was equipment that doesn’t fit the ordinary definition of clothes, then the entire time wouldn’t meet the exception in Section 203(o), and thus employees could be compensated for that time.
Companies may be able to mitigate the litigation risk by including specific clauses in agreements with unionized employees and establishing common practices of not compensating for time spent changing into required attire. Before deciding to don or doff such a clause in your labor contracts, you should consult with an attorney regarding the impact of the Sandifer decision on your company’s practices.