What Are Workplace “Clothes”? The Supreme Court Will Let Us Know

By Eric B. Meyer

Supreme Court to determine what “clothes” are under the FLSA.

With a title like that, this post could only arouse the interest of an employment lawyer. But, you all should pay attention.

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity.

Putting on and taking off (or, in legalese, “donning and doffing”) protective clothing is considered a principal activity. However, the FLSA expressly provides that employees don’t get paid for time spent “changing clothes” if a union contract says so.

What are considered clothes under the FLSA?

The question that the U.S. Supreme Court must now answer, in this case, is what the heck are “clothes” under the FLSA?

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  • Four U.S. circuit Courts of Appeal hold that “clothes” includes anything that can be worn on the person, even “accessories.” Ah yes, clothes.
  • Another circuit Court of Appeal has ruled that “special protective gear different in kind from typical clothing” is not clothing. Clothes?
  • And yet another circuit Court held that “clothes” does not include earplugs or safety glasses. Nice clothes, but no “clothes.

In any event, sometime later this year, maybe we’ll get an answer to this question.

For those of you in a unionized environment, you’ll want to tune in to make sure to get this right to avoid violating the Fair Labor Standards Act.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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