To those that have raised your hand, you are most likely: a) an employment lawyer; b) a Scrabble nerd; or c) not being honest with yourself.
It’s just not a phrase anyone uses in real life — like a “snood” (I’ll get to the relevance of that term down below.)
But on Monday, the U.S. Supreme Court issued an important decision on the subject that will have a direct impact on when employers need to pay their employees for putting on (donning) and taking off (doffing) protective gear.
History buffs will appreciate the decision for its lengthy discussion of the origins of modern day wage & hour law. But the basic gist is this: Many decades ago, wage & hour law developed a theory that “changing clothes” before and after a shift is not compensable working time. The question remained – what about things like a hardhat? Or a special flame resistant jacket? Or safety goggles?
In other words, should an employee be able to get compensation for putting on and taking off protective gear?
The court said it would first adopt the 1950s definition of “clothes” — namely “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Jackets, pants, suits, but also protective clothing like a hardhat that is, after all, still a “hat”.
What’s excluded from that definition? Things like tools and accessories. According to the court, “Many accessories—necklaces and knapsacks, for instance—are not ‘both designed and used to cover the body.’ Nor are tools ‘commonly regarded as articles of dress.'” Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.
And as for the word “changing”: What does THAT mean too? The court said it is not merely “substituting” one set of clothes for another. Rather “altering dress” — such as putting on a special jacket over a shirt is enough in the court’s view.
So what qualifies as “clothes” in the Sandifer case?
- a flame-retardant jacket, pair of pants, and hood;
- a hardhat;
- a snood;
- work gloves;
- metatarsal boots
What doesn’t qualify? Safety glasses; earplugs; and a respirator.
(And, what exactly IS a snood? According to the court: “The snood is basically a hood that also covers the neck and upper shoulder area; on the ski slopes, one might call it a “balaclava.”” As a skier, I can attest to their comfort.)
But how is a court supposed to determine what time is spent on “changing clothes” and what time is compensable putting on protective equipment, like safety goggles? The court adopted a very pragmatic approach saying courts need to look at the time period “as a whole”. Where the “vast majority” of the time is spent changing items that fell within the definition of “clothes,” the entire period could be excluded from the compensable workday. Thus, 10 minutes “changing clothes” along with 1 minute for putting on “safety goggles” would mean the entire time period is excluded from working time.
What are the ramifications from such a decision? The Workplace Prof blog suggests one implication:
[A] distinction, for compensation purposes, will be made between between donning and doffing involving primarily protecive equipment (compensation ) as opposed to primarily protective clothing (not compensable if designated as such under the applicable CBA).
But obviously the other big implication is that where the “vast majority” of an employee’s time before and after shift is spent “changing clothes” — employers need not worry about the minor time that is also spent putting on and off “protective equipment”.