Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time.  In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time.  The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.  

On its face, this holding would appear to reaffirm the de minimus doctrine.  In so ruling, however, the Court cast doubt on the long-established doctrine, whereby an employer is not required to keep track of, or pay for, a few seconds or minutes of work beyond an employee’s scheduled working hours.  The de minimus doctrine has long been an accepted concept in the computation of work time since the Court’s 1946 decision in Anderson v. Mt. Clemens Pottery Company.  In that case, the Court stated “[w]here the matter at issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.  Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.  It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.” 

The Department of Labor, moreover, has published a regulation, 29 C.F.R. §785.47, adopting the rule that uncertain and indefinite periods of time involving a few seconds or minutes in duration, which realistically cannot be counted, are not deemed to be compensable working time.  It further has published a regulation addressing rounding practices where time clocks are involved, 29 C.F.R. §785.48(b).  There, for enforcement purposes, the DOL accepts the rounding of employees’ compensable work time up and down to the nearest 1/10 or 1/4 hour or by five minute intervals as long as, over a period of time, rounding up and down averages out so that employees are fully compensated for all time actually worked.  

Without specifically overruling Anderson, the Court in Sandifer stated that the de minimus doctrine does not fit comfortably within the FLSA, a statute that the Court stated is all about trifles.  In so doing, the Court described the DOL’s de minimus regulation as stricter than Anderson’s since that regulation prohibits an employer from failing to count as hours worked any part, however small, of any practically ascertainable period of time an employee is regularly required to spend on duties assigned to him.  As examples, that regulation states that a dollar of additional compensation per week and 10 minutes per day are not trivial to a working man and that an employer cannot disregard work weeks for which less than a dollar is due.  Thus, the Court held that, except for the union contract exception, there was no reason to disregard for purposes of compensation a minute or so of what otherwise would be compensable time.  

The Court’s discussion of the de minimus doctrine in Sandifer clearly is beyond the issue the Court was asked to resolve, so it ultimately might not have binding effect.  Only time will tell whether attorneys for employees will use it as the basis for FLSA actions for small amounts of time or to challenge rounding practices which do not pay employees for every minute of work.  There, however, is no disincentive for such attorneys to bring such claims as the FLSA contains a fee shifting provision which will permit attorneys for employees, no matter the size of the employees’ recovery, to file a fee petition requesting that the losing employer be required by the Court to pay for all time the attorney spent on the case.  Prudent employers, therefore, would be well advised to scrutinize their pay practices to ensure that they are paying their non-exempt employees for every traceable minute of working time.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
» See more articles by Allison B. Williams
» Read the full biography of Allison B. Williams at Steptoe & Johnson