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US Supreme Court Agrees to Hear Donning and Doffing Claim

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Washington, DCA complex lawsuit has its origins in the debate surrounding whether or not an employee required to wear certain work clothes and safety gear by an employer should be paid for the time it takes to don and then doff the gear. Beyond the potential for an employee to be working off the clock for no compensation is the possibility that once unpaid work time is factored in, an hourly rate of pay can fall below minimums mandated by the state, which in turn allows for an unpaid wages claim.

Case in point is an unpaid wages lawsuit originally filed by plaintiff Clifton Sandifer against his employer, United States Steel Corp. Sandifer filed a class-action complaint in US District Court for the Northern District of Indiana alleging that US Steel violated the Fair Labor Standards Act (FLSA) by not paying he and his fellow class members for the time it took to don then doff their work clothes and time spent walking to and from lockers to their work stations.

The initial ruling by Judge Robert L. Miller found no requirement for compensation under FLSA for donning and doffing gear, but the judge would not dismiss the portion of Sandifer’s claim for travel time. According to Labor and Employment Law (2/19/13), the defendant filed an interlocutory appeal, to which Sandifer responded with a cross appeal in view of his claim for off-the-clock work.

Ruling to dismiss the cross-appeal, The Seventh Circuit US Court of Appeals found that Sandifer did not seek leave to appeal and later ruled that Sandifer’s case had no merit.

But Sandifer, in his unpaid wages class-action claim on behalf of 800 current and former employees of US Steel, wasn’t done yet. The steelworker, together with his unpaid wages attorney filed a petition for a writ of certiorari in the US Supreme Court in September of last year. Central to his argument is the requirement under FLSA that employees are paid from the first moment of engagement in a principal activity required by the employer and by the job.

The plaintiff argued in his unpaid wages lawsuit that the donning then doffing of required gear constituted a principle activity “when it is an integral and indispensable part of the activities for which the worker is employed.” Given that under Section 203(o) of the FLSA, an employer is not required to compensate a worker for time spent “changing clothes” if that time is expressly excluded from compensable time under the Collective Bargaining Agreement, Sandifer petitioned the Court to rule on what constitutes “changing clothes,” amongst other interpretations. For its part, the US Supreme Court agreed, on February 19, to hear the appeal confined only to the changing of clothes argument related to Section 203(o) of the FLSA.

There are various instances where employers will force or coerce workers to toil off the clock, mostly in an attempt to cut costs and better manage the bottom line on the backs of employees. One off-the-clock lawsuit cites an example where a cook in a pizza franchise was allegedly required to clock out at the end of each week at exactly 39 hours, 59 minutes in an effort to preserve his part-time status in relation to overtime and, presumably, the payment of benefits usually reserved for full-time employees.

However, employees required to wear various employer-mandated uniforms, clothing and/or safety gear hold that so long as the employer requires the use of such gear and clothing, then the employer should compensate the employee for the time required to egress and regress. In the absence of such compensation, the employee is effectively being made to work off the clock.

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