“Donning
and doffing”: The Supreme Court will decide an issue of great importance to
employees required to wear gorilla suits to work (and to other employees with
workplace uniform requirements as well)
6
Nov 2013 by Curt Surls
You
recently graduated from a private, liberal arts college in a leafy Midwestern
town with a B.A. in Medieval Albanian Poetry. Nevertheless, you found a
job straight out of college. The good news is that your new job pays a living
hourly wage, and you are represented by a strong union. The bad news is
that you have to wear a gorilla suit to work. Further, the collective
bargaining agreement between your union and your employer denies you
compensation for the time spent changing into and out of your gorilla
suit. Are you out of luck?
Maybe
not. The US Supreme Court is hearing arguments this week in a “donning”
and “doffing” case. “Donning” and “doffing” are archaic verbs used only
by labor lawyers and minor Dickens characters. In legal parlance, you do
not “take off” your gorilla suit after work; you “doff” your gorilla suit.
Ideally,
you shouldn’t have to do any doffing on your own time. Under state and
federal law, if you are required to change into a uniform or protective gear at
the workplace, you are generally entitled to be compensated for that
time. Your gorilla-suit-donning time should be compensable.
But
there’s a wrinkle to this rule in the context of a unionized workplace.
Section 203(o) of the Fair Labor Standards Act (“FLSA”) permits a union to
bargain away an employee’s right to compensation for time spent “changing
clothes” at the beginning or end of the workday.
Since
the late 1940’s, the United Steelworkers union has traded its members’ right to
be compensated for “donning and doffing” for other benefits. And that
agreement is at issue before the U.S. Supreme Court now in Sandifer v. United
States Steel Corporation.
The
steelworker plaintiffs in Sandifer have to outfit themselves in a variety of
flame-retardant safety-gear before commencing their shifts. They argue
that the union has no right to bargain away their right to compensation for
time spent “donning and doffing” the protective gear because they are not
“changing clothes” within the meaning of the FLSA. The term “changing
clothes,” they assert, refers to “substituting certain clothes for others, not
merely putting on something else” over them. The union, therefore, cannot
bargain away their right to be compensated for time spent wrestling with the
Kevlar. They want to be paid for this time.
The
company, with support from the Obama Administration, is arguing for an
expansive definition of “clothes,” that would include protective gear, and
other accoutrements such as safety goggles and ear plugs. In other words,
US Steel and the government want union and management to have the ability to
bargain away the employees’ right to be compensated for the time they spend
“donning” their protective gear.
Nonsense,
claim the steelworkers, who argue that an expansive definition of “clothes” and
“changing clothes” could lead to absurd results. In an analogy that makes
my gorilla suit example seem temperate, the steelworkers question whether an
overly-broad definition of “clothes” would include make-up for a KISS cover
band or Captain Kangaroos’ wig (that was a wig?!).
In
the end, most observers think the US Supreme Court will duck the issue of
gorilla suits, KISS make-up and children’s show host hairpieces and adopt the
definition of “clothes” proffered by the Department of Labor: Items like
hoods, jackets, gloves, pants, leggings, helmets and boots will be considered
“clothes” whether or not they are protective in nature. Therefore, a
union can bargain away the right to compensation for “donning and doffing”
those items.
And
gorilla suits? If you’re in a union, and you’re required to wear a
gorilla suit to work (admittedly, this may not be a substantial demographic),
the Sandifer decision probably won’t affect you; “donning” a gorilla suit would
still likely be considered “changing clothes.” However, workers in
dangerous jobs that require extensive safety gear will be watching this case
with greater interest.
