TBA Law Blog

Posted by: Christy Gibson on Apr 10, 2014

By Michael Russell*

On January 27, 2014, the U.S. Supreme Court handed down its decision in Sandifer, et al. v. United States Steel.[i] In Sandifer, the Supreme Court addressed the definition of “clothes” for purposes of section 3(o) exemption in the Fair Labor Standards Act.

Legal background

As a general proposition, the Fair Labor Standards Act (FLSA) entitles employees to a certain minimum wage and overtime premium when they work more than 40 hours in a work week. The FLSA did not, however, define the words “work” or “work week.” According to Justice Scalia, this was “an omission that let loose a landslide of litigation.” [ii]

As a result, the Supreme Court handed down the 1946 case of Anderson v. Mount Clemmons Pottery.[iii]  In Mount Clemmons Pottery, the Supreme Court said the “statutory work week includes all time during which an employee is necessarily required to be in the employer’s premises, on duty or at a prescribed work place.”[iv] This included pursuing “certain preliminary activities after arriving … such as putting on aprons and overalls [and] removing shirts.”[v] The court held that these activities were work.

Congress, as it often does, did not like the Supreme Court’s holding. Therefore, they responded by passing the Portal-to-Portal Act. The Portal-to-Portal Act excluded from compensable time “activities which are preliminary to or post-liminary to [the] principal activity or activities” that begin the day.[vi] In the interpreting the Portal-to-Portal Act, the Department of Labor announced what has become known as the “continuous work day rule.”[vii] This rule basically says that the compensable work day begins at the point of the employee’s first principal activity. The gravamen of the continuous work day rule is it does not matter that the employee did not engage in work during the entire time period between his first and last principal activity. Under the “continuous work day rule,” the work day continues from the time of his principal activity to the time of his last principal activity.

In 1949, Congress once again amended the FLSA to include what is known as the section 3(o) exemption.[viii] Under the 3(o) exemption, time spent changing clothes can be excluded from the work day pursuant to a collective bargaining agreement or by custom or practice between the employer and union.

What the Court’s Holding Means

In Sandifer, the employees argued the word “clothes” should be construed to exclude items “designed and used to protect against work place hazards.” The clothing at issue was “a flame retardant jacket, pair of pants, and a hood; a hard hat; a snood; wristlets; work gloves; leggings, metatarsal boots; safety glasses, ear plugs; and a respirator.”[ix]The employees argued that there is a difference between “clothes” and “safety gear.”

The Supreme Court disagreed. They held “protective gear” is generally included within the meaning of “changing clothes” for purposes of the section 3(o) exemption. The Court acknowledged that such items as glasses and ear plugs are not “clothes.” However, they held that time spent changing those small items were de minimis. [x]

The takeaway from the Court’s holding is, quite simply, most protective gear falls within the definition of clothes for purposes of the section 3(o) exemption. Therefore, in a union workforce with an appropriately tailored collective bargaining agreement, the time spent putting on this safety gear will not be compensable. It will therefore not trigger the “continuous work day rule.”

What the Court’s Holding does not mean

While Sandifer could have far reaching consequences for the union workforce, one should be careful not to read it too broadly. There are a number of things that Sandifer does not mean. First, the Sandifer decision specifically recognizes that putting on the safety clothes at issue in this case would be compensable in a non-union work place. Justice Scalia recognized that for the company’s reliance on the section 3(o) exemption, this “donning-doffing time would otherwise be compensable under the Act.”[xi]

Second, the Court also recognized that the time donning other substantial tools and equipment would not be excluded from compensable work time, regardless of whether the employer is unionized. The Court specifically recognized that “[o]ur definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as equipment and devices.”[xii]


In summary, the Sandifer decision was justifiably greeted with a positive reaction from employers with unionized workforces. It clears any ambiguity. To the extent it has an application to non-unionized workplaces, it merely clarifies that donning safety equipment generally is a compensable activity that begins the work day under the “continuous work day rule.”


*Michael Russell is a partner in the law firm of Gilbert Russell McWherter in their Brentwood, Tennessee office. Michael is a graduate of University of Memphis Cecil C. Humphreys School of Law. He writes a blog on Tennessee workplace issues, located at http://www.tennesseeworkplacelaw.com/. Michael may be reached at mrussell@gilbertfirm.com or (615) 354-1144.

[i] 134 S.Ct. 870 (2014).

[ii] Id. at 875.

[iii] 328 U.S. 680 (1946).

[iv] Id. at 690-91.

[v] Id. at 692-693.

[vi] 29 U.S.C. 254 (a)(2).

[vii] 29 CFR §790.6 (b).

[viii] 29 U.S.C. §203(o).

[ix] Sandifer, 134 S.Ct. at 879.

[x] Id. at 880.

[xi] Id. at 874.

[xii] Id. at 878.