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Related Practice
Dressing on the Employer’s Time
03.01.02

Do you have to pay an employee for time spent changing clothes at a worksite when the company mandates it? This question was the subject of debate in the Texas federal court case of Bejil v. Ethicon, Inc., 125 F. Supp 2d 192 (N.D. Tex. 2000). The decision provides insight on how this question affects a union company who has not addressed this issue expressly in their collective bargaining agreement.

The analysis usually begins with the Portal-to-Portal Act, 29 U.S.C. §251 et seq. and a special provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 203(o). Under the Portal-to-Portal Act, compensable time does not include preliminary and postliminiary activities? which are not an integral part of the employee's principle activity.

Exceptions to the Act include situations where these activities have been made compensable by contract, custom or practice or where the activity is so integrally related to the employee's principal activity, it really is a part of that principal activity (i.e. changing into and out of special clothing required for work). Under the FLSA, employers must pay for all hours which they suffer or permit employees to work.

The only way to circumvent this rule was to exclude payment in express terms of or by custom and practice under a bona fide collective bargaining agreement. Agreement or custom at a non-union plant was not enough.

The FLSA exception applies to a union plant that does not have this issue expressly addressed in its collective bargaining agreement? A Texas federal court says yes. In Bejil, the employer required its employees to wear special apparel over their hair and clothes to minimize the contamination of its product.

Employees, however, were not compensated for the time spent changing into and out of these clothes at the beginning and end of their work shift. The union filed two grievances over this issue and tried to negotiate with the employer but failed to alter the practice. Finally, the union filed suit.

After discussing the impact of the FLSA, a Texas federal court judge granted summary judgment for the employer despite the absence of a formal provision in the company's bargaining agreement governing the issue. The court held the employer had established a custom of non-compensability under a bona fide collective bargaining agreement through years of established policies, collective bargaining negotiations and unsuccessful union grievances.

The Court specifically stated the parties were not required to have raised the issue of not compensating employees for clothes-changing time in formal collective bargaining negotiations or in the express language of the collective bargaining agreement for the provisions of 29 U.S.C. Section 203(o) to apply.

For non-union companies, whether time spent changing clothes or washing is compensable still depends upon the circumstances. Where the nature of the work, the employer's rules or a law requires changing clothes, washing or showering at work, the time may be compensable.

When deciding whether or not to consider this time in calculating compensable wages, you would be well advised to pay attention to the Court's ruling in Bejil. But, do not forget the mandatory provisions in the Portal-to-Portal and Fair Labor Standards Acts.