The U.S. Supreme Court has handed down a unanimous decision in a request by union workers to be paid for the time it takes to put on and take off safety gear.
The company won, but that doesn’t mean workers never have to be paid for donning and doffing personal protective equipment (PPE).
Union workers at a U.S. Steel plant in Gary, IN, sought back pay for time spent putting on and taking off PPE. The company argued it didn’t have to pay under a provision of its collective bargaining agreement with the workers’ union.
U.S. law allows the question of whether workers are paid to put on and take off clothing to be part of the collective bargaining process.
An exception applies only when the changing of clothes is “an integral and indispensable part of the principal activities for which covered workmen are employed.” PPE is the only clothing that is deemed integral and indispensable.
The workers said what they were putting on and taking off was PPE. U.S. Steel said it was clothing.
The Supreme Court said the company was right concerning nine out of the 12 items. The first nine in the following list are clothing, according to the court; the last three could be considered PPE:
- flame-retardant jacket
- flame-retardant pants
- flame-retardant hood
- a snood (a hood that covers the neck and upper shoulders)
- wristlets (detached shift sleeves)
- work gloves
- steel-toe boots
- safety glasses
- earplugs, and
- a respirator.
Why are the last three PPE but the other nine not? According to the opinion written by Justice Antonin Scalia:
- The jacket, pants, hood and gloves are all designed and used to cover the body and are considered to be articles of dress
- The hardhat is simply a type of hat
- The snood, wristlets and leggings are also body coverings, and
- The steel-toe boots are just a special type of shoe.
So, should the workers be paid for the time it takes to put on the safety glasses, earplugs and respirators? A lower court said the time it took to don and doff those was so short that it didn’t need to be considered.
The Supreme Court let that determination stand, but Justice Scalia looked at the situation a little differently. When there is a mix — some plain clothes, some PPE — Scalia wrote:
“If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as ‘time spent in changing clothes’ even if some clothes items were also donned and doffed. But if the vast majority of the time is spent in donning and doffing ‘clothes’ as defined here, the entire period qualifies, and the time spent putting on the off other items need not be subtracted.”
In other words, if there are more clothes than PPE, as in this case, workers don’t need to be paid for the time. In the opposite situation, they do.
Is this the end of donning and doffing cases in the federal court system? Not by a long shot.
We now have a list of 12 items that the Supreme Court has split into clothes and PPE. Of course, there are other items that aren’t on the list. And if history is an example, there will be lower court fights to determine whether other items are clothes or PPE and therefore if workers should be paid for the time it takes to put them on and take them off, using the guidance the Supreme Court gives in this case.
What do you think about the Supreme Court’s ruling? Let us know in the comments.
(Sandifer v. United States Steel Corp., U.S. Supreme Court, No. 12-417, 1/27/14)