EXCEPTION TO THE EXCEPTION

Companies of a certain size are subject to the Fair Labor Standards Act and must pay overtime to most employees who work more than 40 hours a week.  Congress has also specified that hours worked are calculated “portal to portal,” meaning that the clock starts ticking when an employee first gets to work.  As a consequence, time worked includes time spent on the work site donning protective gear before actually getting to the task at hand, and time taking it off at the end of the day, in those professions where such gear is necessary.

But the law is made not only of rules, but of exceptions to those rules, and exception to exceptions.  One exception to the “portal to portal” rule is that employers and employees may agree that time spent changing clothes should not count toward hours worked, so long as that arrangement is part of a bona fide collective bargaining agreement.  We will call that the “CBA Exception.”

Along came a group of steel workers who asked the Supreme Court to find an exception to the exception.  Their union had agreed to a collective bargaining agreement excluding the time spent changing clothes from time worked.  But the workers argued that donning protective gear over their clothes was not the same thing as changing clothes, so it could not be excluded under the CBA Exception.

The Supreme Court held that this would be splitting hairs a little too thin and found for the employer.  If a collective bargaining agreement, the subject of often hard-fought negotiations between the employer and unions, excludes changing clothes from the total of hours worked by employees, it will not matter whether an employee first takes off his t-shirt or not.

A moral to the story is that overtime law is replete with nooks and crannies that may well decide the case, and a knowledgeable lawyer will help go beyond the more general principles of paying for overtime.