U.S. Supreme Court: Time Spent Donning, Doffing Gear Is Not Compensable

WASHINGTON, D.C. — (Mealey’s) The time workers at United States Steel Corp. spend donning and doffing protective gear is not compensable under the Fair Labor Standards Act (FLSA), the U.S. Supreme Court ruled Jan. 27 (Clifton Sandifer, et al. v. United States Steel Corporation, No. 12-417, U.S. Sup.) [enhanced opinion available to subscribers] [ subscribers may access Supreme Court briefs for this case].

“The object of §203(o) [of the FLSA] is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation.  There can be little predictability, and hence little meaningful negotiation, if ‘changing’ means only ‘substituting.’  Whether one actually exchanges street clothes for work clothes or simply layers garments atop one another after arriving on the job site is often a matter of purely personal choice.  . . .  Applying the foregoing principles to the facts of this case, we hold that petitioners’ donning and doffing of protective gear at issue qualifies as ‘changing clothes’ within the meaning of §203(o),” Justice Antonin Scalia wrote for the court.  He noted that of the 12 items of gear in question, only three (safety glasses, earplugs and a respirator) do not fit in the guidelines of “clothes” but that the time spent putting on those particular items is minimal.  

“The question for the 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,” Justice Scalia wrote. 

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito Jr. and Elena Kagan joined in the opinion.  Justice Sonia Sotomayor joined in the opinion except as to footnote 7 which read:  “This Court has stated that ‘exemptions’ in the Fair Labor Standards Act ‘are to be narrowly construed against the employers seeking to assert them.’  Arnold v. Ben Kanowsky, Inc., 361 U. S. 388, 392 (1960).  We need not disapprove that statement to resolve the present case.  The exemptions from the Act generally reside in §213, which is entitled ‘Exemptions’ and classifies certain kinds of workers as uncovered by various provisions.  Thus, in Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___–___, n. 21 (2012) (slip op., at 19–20, n. 21), we declared the narrow-construction principle inapplicable to a provision appearing in §203, entitled ‘Definitions.’” 

Donning And Doffing 

U.S. Steel employee Clifton Sandifer filed a class complaint against his employer in the U.S. District Court for the Northern District of Indiana, on behalf of 800 former and current hourly workers.  He alleged that U.S. Steel violated the FLSA by failing to compensate him and the class of employees for the time they spend putting on and taking off their work clothes and walking from the locker room to their work stations and back. 

The collective bargaining agreement (CBA) between U.S. Steel and the workers’ union does not require compensation for that time.  However, Sandifer argued that the FLSA does require the compensation, so that overrides the CBA.  Judge Robert L. Miller Jr. ruled that Section 203(o) of the FLSA does not require that the time spent “changing clothes” be compensated.  However, he refused to dismiss the portion of the case seeking compensation for the travel time.  U.S. Steel filed an interlocutory appeal.  Sandifer cross-appealed. 

In a May 8, 2012, opinion, the Seventh Circuit U.S. Court of Appeals dismissed the cross-appeal, finding that Sandifer did not seek leave to appeal.  The appellate panel also ruled that Sandifer’s case had no merit and should be dismissed. 

Sandifer petitioned the U.S. Supreme Court. 


Eric Schnapper of University of Washington School of Law in Seattle represents Sandifer.  Lawrence C. DiNardo of Jones Day in Chicago represents U.S. Steel. 

Matthew J. Ginsburg of Washington filed an amicus brief on behalf of The American Federation of Labor and Congress and The United Food and Commercial Workers International Union.  Tammy D. McCutchen of Littler Mendelson in Washington filed an amicus brief on behalf of the Grocery Manufacturers Association.  E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe in New York filed an amicus brief on behalf of the Chamber of Commerce of the United States of America.  Joseph E. Tilson of Chicago filed an amicus brief on behalf of American Meat Institute, North American Meat Association, National Turkey Federation and National Chicken Council.  Solicitor General Donald B. Verrilli Jr. of Washington filed an amicus brief on behalf of the United States.

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