Will Companies Have to Pay Employees to Take Off Their Clothes?

By Robyn Hagan Cain on February 22, 2013 | Last updated on March 21, 2019

Strippers may not be the only employees who get paid to take off their clothes.

Depending on the outcome in a Supreme Court case next term, workers who are required to wear protective clothing for safety reasons could get paid for donning and doffing their clothes at the beginning and end of the workday.

The Fair Labor Standards Act requires that workers be paid at least the federal minimum wage for all hours worked, and time-and-a-half for hours worked over 40 hours in a week. But the statute does not define "work." In 1947, Congress passed the Portal-to-Portal Act to limit court expansions of the term "work." The Act was intended to prevent unforeseen, retroactive liabilities in agreements between labor and management.

Two years later, in the spirit of that Act, Congress added Section 3(o) to the FLSA. That section excludes from the compensatory time period "any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee."

The statute does not define "clothes." Because that would have been too easy.

Much as the Supreme Court tackled the all-important issue of "what is golf" in 2001, next term it will decide what constitutes "changing clothes."

The plaintiffs in the case, Sandifer v. United States Steel Corporation, argue that the FLSA Section 3(o) doesn't apply in their line of work because their work "clothes" are not clothes, but safety equipment. Specifically, the plaintiff steel workers must wear protective clothing, hard hats, ear plugs, boots, and hoods while they work.

Though the collective bargaining agreement between U.S. Steel and the steelworkers union does not require compensation for donning and doffing time -- and none of the previous collective bargaining agreements between the parties since 1947 required it either -- the plaintiffs claim that that the FLSA requires compensation for that time. And the FLSA trumps any contrary contractual provision.

The Seventh Circuit Court of Appeals ruled for U.S. Steel in the matter, finding that the protective gear counted as clothing, so the workers' time spent changing in and out of the gear qualified as "changing clothes." The steel workers are appealing that ruling.

If you are counsel for a company that requires workers to wear protective gear, you should follow this case closely. Should the Supreme Court side with the workers, your company may be faced with deciding between overtime pay or less productivity during a standard, 40-hour work week.

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