The United States Supreme Court recently agreed to decide the issue of what exactly constitutes “changing clothes” under the Fair Labor Standards Act (FLSA).
The FLSA requires employers to pay their non-exempt employees overtime compensation (“time and a-half”) for hours that the employees work in excess of 40 hours in one workweek. For purposes of the FLSA, the time for which an employer must pay an employee overtime compensation begins once the employee engages in what is known as “principal activity.” Donning and doffing (fancy words used by lawyers to mean putting on and taking off) safety gear, including protective clothing, constitutes a principal activity if it is an integral and indispensable part of the work activities for which the employee was hired. However, as employment attorneys know, under Section 203(o) of the FLSA, an employer does not need to compensate an employee for time that they spend changing clothes (even if it is a principal activity) if that activity is expressly excluded from compensable time under the employee’s collective bargaining agreement.
Specifically, Section 203(o) provides:
In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
All of this sets the stage for Sandifer v. U.S. Steel Corp., a collective action lawsuit brought under the FLSA by 800 former and current hourly steelworkers at U.S. Steel’s plant in Gary, Indiana. In their lawsuit, the workers argued that U.S. Steel violated the FLSA by failing to pay them overtime compensation for the time they spent putting on and taking off their work clothes in the plant’s locker room, as well as for the time they spent traveling from the locker room to their work stations each morning and then back each evening. The collective bargaining agreement between the workers’ union and U.S. Steel does not require U.S. Steel to compensate the workers for such time.
In May of 2012, the U.S. Court of Appeals for the Seventh Circuit held that the lower court correctly found that the time spent by steelworkers changing into and out of protective work clothes was covered by clothes-changing provision in Section 3(o) of FLSA and, thus, was not compensable under the Act. The workers’ appealed, and the Supreme Court accepted the appeal.
The specific question currently before the Supreme Court is “What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the Fair Labor Standards Act.” While this question may seem inconsequential, the Supreme Court’s decision on this issue has the potential to affect employees’ overtime compensation rights for years to come. Unfortunately, recent decisions from the United States Supreme Court have favored employers. Fortunately, even an adverse decision from the Supreme Court, which would apply to every state including Ohio, would be limited to those employees that are working under a collective bargaining agreement that excludes payment for donning and doffing.
If you believe that your employer is not paying you for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Fair Labor Standards Act, contact the attorneys at the Spitz law firm today for a free and confidential initial consultation. The wage and hour lawyers at the Spitz law firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
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