309-788-2800 mcfe@mcfe-law.com

How long does it take you to get dressed for work in the morning? Ten minutes? Twenty minutes? Wouldn’t it be nice if your employer paid you to get ready for work? In some occupations, getting “dressed” takes a significant amount of time because they have to wear protective gear in addition to, or in place of, their normal, everyday clothing. Employees may have to arrive early to get into this protective gear so they can begin working their shift on time. If you’re one of these employees, have you ever wondered why you aren’t getting paid for that time?

The Fair Labor Standards Act (“FLSA”) requires that employers pay their employees for all hours worked. However, the FLSA does not define “work.” This lack of a defined term makes sense because it would be very difficult to provide a list of every potential kind of work that an individual could do. Nonetheless, without a clear definition, it leads one to ask, can changing clothes be considered “work?”

The FLSA may not allow you to answer that question in some professions. This is because the FLSA, 29 U.S.C. § 203(o), specifically states that employers do not need to pay employees for “any time spent in changing clothes or washing at the beginning or end of each workday.” Again, the FLSA does not define “clothes,” which could create some confusion.

The FLSA attempts to curb the effects of the clothing exclusion by stating that the employer can only forego paying its employees for changing clothes if the employer and the union agreed to that arrangement. Stated another way, the employer can only get away with failing to pay its employees for “changing time” if the union gives it permission. A union might do this as a negotiation tool in exchange for higher hourly pay overall or for additional benefits.

A case arising from the Seventh Circuit is heading to the Supreme Court to address these questions. In that case, the employees have to change into protective clothing at work. The employees in this case are steelworkers, and they spend time before and after their shift changing in and out of their work clothing and protective gear. They argue that their uniforms are not just clothes; they are protective gear and safety equipment. They attempt to make this distinction to get around 29 U.S.C. § 203(o), which would not require the employer to pay the employee for their time in changing clothes if the union used that as a bargaining tool.

It is easy to see the argument in this case. As the Seventh Circuit points out, “[f]rom a worker’s standpoint any time spent on factory grounds is time ‘at work’ in the sense of time away from home or some other place where he might prefer to be if he weren’t at work. But it is not time during which he is making steel, and so it is not time for which the company will be willing to pay.” This type of situation is not exclusive to the steel industry. Nurses in Colorado are suing for their employer’s failure to pay them for changing in and out of their scrubs. A group of police in New Jersey is suing because their employer is not paying them for changing in and out of their uniforms. When changing in and out of uniforms is sufficiently time-consuming, the average worker may stop to wonder why their employer is not paying them for their extra time.

The decision that the Supreme Court makes in this case will affect a huge number of employees across the country. It is important to keep an eye out for developments in this case so you know your rights as an employee. If you have questions about this case or any aspect of employment law, call McCarthy, Callas & Feeney at 309-788-2800.


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