The United States Supreme Court will soon determine whether time spent putting on and removing — or “donning” and “doffing” — protective clothing for work should count as paid time. Workers at an Indiana steel mill, U.S. Steel’s Gary Works, claim that it should. They spend considerable time donning jackets, pants, work gloves, steel-toed boots, eye protection, hard hats, and ear plugs before they start their work. The clothing protects them from the fire and molten steel from the mill’s blast furnaces and coke ovens. However, 800 former and current workers claim that they have not been compensated for their time, and have filed a class action suit against their employer as a result. Meanwhile, U.S. Steel claims that the time the workers spend changing does not count as part of a day’s work, as defined by the workers’ union contract dating back to 1947.Whether time for donning and doffing equipment should be compensated is a question that has frequently appeared in the lower courts. Many collective bargaining agreements even include provisions as to whether donning and doffing time is covered. Before a case on the issue can go through the courts, the workers involved must typically exhaust the remedies of the collective bargaining agreement, if there is one. If they fail to do so, the court will usually dismiss their case, stating that the workers may come back only after they have followed collective bargaining procedures.
The situation also highlights the changing nature of work, the difficulty with determining when a work week begins, and ways in which the federal Fair Labor Standards Act — intended to address these issues — is behind the times.
The Fair Labor Standards Act does not define what “work” means, and thus any interpretation could exclude numerous tasks that we consider part of the work day, not just donning and doffing equipment. Furthermore, at the time the Fair Labor Standards Act was enacted in 1938, there were, of course, no emails and cell phones. With new technology, a work day can be extended well into the evening, long after the day has technically “ended.” That can be a problem not only for hourly workers who must don and doff protective clothing, but also for so-called “exempt” employees who are paid a salary and do not receive overtime as long as their employers pay them higher wages per hour.
While no one expects the U.S. Supreme Court to nullify the Fair Labor Standards Act — which could destroy countless protections that American workers depend upon — many observers are curious to see how the Justices apply the Act’s provisions to this situation. Given the U.S. Supreme Court’s recent history, it would not be surprising if a narrow majority voted to create a very narrow definition of “work” that does not include donning and doffing equipment. In the meantime, if you live in Indiana and have an employment issue, contact an Indiana wage and hour attorney to discuss your options.
Miller & Falkner is a plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. Contact us today for a free consultation.