A federal district court ruled that hourly production and maintenance workers at U.S. Steel’s Clariton, Pennsylvania coke plant were not entitled to compensation for time spent donning, doffing, and showering at the beginning and end of their work days under Section 3(o) of the Fair Labor Standards Act (“FLSA”). Section 3(o) effectively excludes time spent by employees donning and doffing “clothes” or washing time from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement. The FLSA does not define the term “clothes,” and many courts have disagreed over what constitutes changing clothes.

In Andrako v. United Steel Corp., plaintiffs brought an FLSA collective action alleging violations based on the company’s failure to compensate for donning and doffing certain protective equipment, showering time, and time spent walking to and from their working stations. The court held that the items donned and doffed by U.S. Steel workers plainly were clothes within the meaning of the statue. In making its determination, the court noted that it was applying a common and ordinary meaning of the term. The items in question included safety glasses, hard hats, flame retardant jackets and pants, flame resistant gloves, hearing protection, snoods or hoods, wristlets, and respirators. The court rejected plaintiffs’ narrow construction that Section 3(o) should not apply to any apparel or equipment intended for protection and/or required by the employer or law. Similarly, the court rejected the plaintiffs’ argument that showering does not fall with Section 3(o)’s exception for washing time.

In support of its decision, the district court cited the Eleventh Circuit’s decision in Anderson v. Cagle’s Inc., 488 F.3d 945 (2007) that applied a broad definition of clothes under Section 3(o). While the Anderson decision acknowledged there may be limits to Section 3(o) based on the nature or purpose of the garments at issue, the Eleventh Circuit held that protective clothing worn by chicken processing plant employees fell within the statute’s exception. Conversely, the Ninth Circuit in Alvarez v. IBP, Inc., 339 F.3d 894 (2003) found that the donning and doffing of specialized protective gear worn by meat production employees did not constitute changing clothes under Section 3(o). The Andrako decision highlights the discord among the circuit and district courts. Last year, the United States Supreme Court declined to address the issue of when federal labor laws require employers to compensate its employees for time spent changing into and out of clothes raised in three separate cases - Anderson v. Cagle’s Inc., 488 F.3d 945 (11th Cir. 2007), Gormon v. Consolidated Edison Corp., 488 F.3d 586 (2nd Cir. 2007), Tyson Foods Inc. v. De Ascencio, 500 F.3d 361 (3rd Cir. 2007), denying certiorari 128 S.Ct. 2902 ( 2008).

Finally, regarding the plaintiffs’ claims seeking compensation for time spent walking to and from their workstations after changing in and out of company supplied clothes, the district court denied the defendant’s motion for summary judgment. U.S. Steel argued that because the time spent donning and doffing was not compensable time under Section 3(o), those activities could not trigger the beginning and end time under continuous workday theory. The court held that Section 3(o) excludes time spent changing clothing as compensable time, however, “it does not render such time any more or less integral or indispensable to an employee’s job.” Importantly, the court noted that its decision did not address whether such time was de minimis as the issue was not before the court.

The Andrako decision provides further support for employers that exclude time spent by employees donning and doffing company issued uniforms and gear under the terms or custom and practice under a collective bargaining agreement.

This blog entry was authored by Tina Winston.