Fort Worth employment lawyer: Supreme Court addresses donning and duffing rule under a collective bargaining agreement

On January 27, 2014 the U.S. Supreme Court addressed a narrow exception to the donning and duffing rule. The exception applies to the terms of a collective bargaining agreement under the National Labor Relations Act. Although this issue will affect few Texas employees, it is an important rule for union employees. It is also a key wage consideration for future collective bargaining agreements. Under the Supreme Court’s opinion in Sandifer, employees under a collective bargaining agreement may not receive pay for some or all time spent donning and duffing protective attire.

What is the donning and duffing rule

Over the past several years courts addressed wage claims alleging their employers owed them for preparation time before the shift and clean down time after the shift. These include wage claims for time putting on uniforms or protective gear for the employee’s job performance. These claims fall under the donning and duffing rule (putting on and taking off) under the Fair Labor Standards Act. According to a Supreme Court opinion on the Portal-to-Portal Act of 1947, “[p]reliminary and postliminary activities are compensable . . . if they are an ‘integral and indispensable part of the [employee’s] principal activities.”

Putting on and taking off protective gear is always compensable time under the basic rule. There is, of course, disagreement about what constitutes protective gear in a given situation. There is disagreement about whether putting on and off certain types of non-protective clothing fall under the rule. Under Department of Labor guidance, putting on uniforms at the job site may fall under the donning and duffing rule. (Your normal activities of getting ready for work are not compensable under the FLSA donning and duffing rule.)

The collective bargaining agreement exception to the donning and duffing rule

In Monday’s opinion (available here) in Sandifer v. United States Steel Corp., the Supreme Court addressed, in an unanimous opinion, the issue of whether a collective bargaining agreement covering union workers could exclude the covered workers from pay for certain types of donning and duffing time. In Sandifer, the plaintiff-employees filed suit under the FLSA for unpaid donning and duffing of protective gear. U.S. Steel said the time was unpaid because the employees worked under a collective bargaining agreement that did not require the company to pay for that time. The employees cited to the donning and duffing rule and the legal question rose to the highest court.

The key statutory language in the dispute is section 203(o) of the Fair Labor Standards Act. Section 203(o) permits bargained agreements to govern whether employees receive pay for “changing clothes” before and after work. The legislative history of the section reflects that at the time the section was added as an amendment to the FLSA in 1949, some CBAs protected pay for donning and duffing time but others did not. Rather than have the government make a decision it was better to defer to the negotiated agreement. (Discussed here.)

The CBA in Sandifer did not include pay for time spent changing clothes. Disagreement arose about whether the donning and duffing of protective gear was part of the CBA. Looking to dictionaries at the time, the Court found no textual distinction between street clothes and clothes for protective purposes. There is a distinction between protective clothing and protective items not simply protective versions of normal forms of attire.

No difference exists between putting the protective clothing on top of street clothes or taking off street clothes to put on the protective clothing. A complication to the factual issues was that the employees were donning and duffing what the Court determined to be protective clothing from protective non-clothing gear at the same time. The Court held that the appropriate test is the entirety of what the employees do during that time period. However the majority of the time should govern whether section 203(o) applies or whether you receive pay.

What this means for employees in Texas

If your employment is not covered by a collective bargaining agreement then the donning and duffing rule has not changed under this decision. If you are a bargained employee and your CBA does not include pay of donning and duffing then your remedies may be limited. Bargained employees may find time for donning and duffing protective gear clothing is no longer payable. That might result in some additional litigation but it is unlikely this decision will result in a flurry of suits.

The probable effect here is that union negotiators will want to specify that time spent donning and duffing protective clothing and gear before and after shifts is included in compensable time to avoid employees falling into the same position as the Sandifer plaintiffs. Employers, obviously, will not want to commit to paying for additional time if they can avoid it. They will deploy crafty ways of structuring donning and duffing to make that time “changing clothes” and avoid paying. The unions will probably find themselves giving something up to protect that paid time for employees.

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