The United States Supreme Court has agreed to hear an important case involving donning and doffing and the meaning of the term 'changing clothes' under the Fair Labor Standards Act (FLSA).

In the latest installment of BLR’s HR Compliance News Update video series, legal editor Susan Prince provides background on the issue and details about the case--and explains why it’s important to employers.

In each episode of BLR’s new HR Compliance News Update video series, we’ll go over recent, significant developments employers should know about and provide insights beyond the headlines from our team of HR legal editors.

Subscribe to future episodes at BLR's YouTube Channel

Susan Prince: There have been many legal battles about whether employees should be compensated for the time it takes to change clothes before and after working - whether it is a unique uniform, protective gear, or a basic outfit that can also be worn on the street. Confusion also exists for employers about whether the walk to the working area after changing clothes is paid work time.

In light of this confusion and differences of opinion between various courts, the United States Supreme Court has agreed to hear the case Sandifer v. U.S. Steel, Corp., to determine what "changing clothes" means within the context of the Fair Labor Standards Act, or FLSA.

The FLSA states that hours worked does not include "any time spent in changing clothes …at the beginning or end of each workday which was excluded from …working time … under a bona fide collective-bargaining agreement…."

In 2005, the U.S. Supreme Court in IBP, Inc. v. Alvarez, ruled that employers must compensate workers for the time they spend after the first principal activity and before the last principal activity of the workday. So the question is, can "changing clothes" be considered a principal activity that starts tolling the compensable workday, even though the act of changing clothes is noncompensable under a collective bargaining agreement? And what is considered "changing clothes"?

In Sandifer v. U.S. Steel, Corp., steel workers from the US Steel plant in Gary, Indiana sought payment in court for the time they had spent each day donning and doffing their protective gear and for the time they spent walking to and from the production floor. U.S. Steel argued, in contrast, that the collective bargaining agreement specified that the donning and doffing and walking to and from the production line were not compensable.

The District Court judge ruled that FLSA does not require the steel workers to be paid for donning and doffing their clothes. The district court did say that changing clothes might be a principal activity, which would mean that workers would need to be paid for the time spent walking to the production line after changing clothes.

The 7th Circuit Court of Appeals determined that since the time spent changing clothes was not compensable, it would, therefore, not be a principal activity. Further, the Court of Appeals noted, if clothes changing time is not a principal activity, then time spent walking to and from the production line would also not be compensable.

The Court of Appeals openly stated that it was contradicting the federal Department of Labor’s most recent opinion on the matter. The DOL stated in a 2010 Administrator’s Interpretation that even noncompensable "clothes changing covered by Section 203 may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable."

District courts have also been deeply divided on this issue. Further, in 2010, the 6th Circuit Court in Franklin v. Kellogg, came to the same conclusion as the DOL.

Now the case has made it all the way to the United States Supreme Court, which has agreed to examine what the term "changing clothes" means in the FLSA context. This decision will hopefully enable employers with unionized workplaces to fully understand what activities need to be paid work time as their employees prepare for the workday.

Susan E. Prince, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Prince has over 10 years of experience as an attorney and writer in the field of human resources and has published numerous articles on a variety of human resources and employment topics, including compensation, benefits, workers’ compensation, discrimination, work/life issues, termination, and military leave. Ms. Prince also served as an expert on several audio conferences discussing the 2004 changes to the federal regulations under the Fair Labor Standards Act. Before starting her career in publishing, Ms. Prince practiced law for several years in the insurance industry and served as president of a retail sales business. Ms. Prince received her law degree from Vermont Law School.