Section 203(o) provides:Hours Worked.— In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. 29 U.S.C. Sec. 203(o) At issue in Sandifer was a practice pursuant to the employer’s collective bargaining agreement with the Steelworkers union, which represented workers at the employer’s Gary, Indiana facility. Pursuant to the employer’s long-standing past practice and previous collective bargaining agreement language, the employer, U.S. Steel, did not pay its employees for the time spent changing into and out of their work gear, which included flame-retardant pants and jackets, work gloves, steel-enforced work boots, hard hats, safety glasses, earplugs, and a hood that covers the top of the head, chin, and neck.

The issue in the case is the validity of a provision in the collective bargaining agreement between the union representing the employees and U.S. Steel. The validity specifically turns upon the applicability of 29 U.S.C. § 203(o), which provides that in a unionized setting the time spent “changing clothes” may be excluded from compensable time through negotiation by parties to a collective bargaining agreement. The District Court granted summary judgment to U.S. Steel on this issue holding that the donning and doffing of the required protective gear constituted “changing clothes” within the meaning of §203(o).

In Sandifer,there was no dispute that the employees’ time spent donning and doffing the above-listed protective items would ordinarily be compensable work hours under the FLSA. However, the Court held that the time was not compensable under 29 U.S.C. § 203(o), a provision of the FLSA which states that:In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.29 U.S.C. § 203(o). In other words, notwithstanding the general principles of the FLSA, employers who have employees subject to a collective bargaining agreement may bargain with the union over whether time spent “changing clothes” must be paid or not.

See Walling v. Portland TerminalCo., 330 U.S. 148, 150-51 (1947). Instead, the FLSA defines “employ” broadly as including “to suffer or permit to work,” 29 U.S.C. 203(g), which clearly covers more workers as employees, see U.S. v. Rosenwasser, 323 U.S. 360, 362-63 (1945).In order to make the determination whether a worker is an employee or an independent contractor under the FLSA, courts use the multi-factorial “economic realities” test, which focuses on whether the worker is economically dependent on the employer or in business for him or herself.

The statute’s definitions of these terms are expansive and meant to indicate that the law applies to a broad range of employment relationships. 29 U.S.C. §§ 203(d), (e)(1), (g); Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947)); United States v. Rosenwasser, 323 U.S. 360, 362 (1945).

The provision permits an employer not to count this time as compensable FLSA hours worked, if this is done pursuant to "the express terms of or by custom or practice" under a collective bargaining agreement. 29 U.S.C. § 203(o).The main question addressed by the new interpretation is whether this rule should apply to time spent donning and doffing "protective equipment." Citing statutory language, legislative history, and some recent court cases, DOL concludes, "it is the Administrator’s interpretation that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job."

29 CFR 531.52. Tipped employees are employees who customarily and regularly receive more than $30 per month in tips. 29 U.S.C.A. § 203(t).California Definition: A tip or “gratuity,” as defined by the California Labor Code, is money a customer leaves for an employee (or employees) over the amount due for the goods sold or services rendered.

The FLSA and MSPA Broadly Define the Employment Relationship and Thus the Scope of Joint EmploymentThe scope of employment relationships subject to the protections of the FLSA and MSPA is broad. The FLSA defines “employee” as “any individual employed by an employer,” 29 U.S.C. 203(e)(1), and “employer” as including “any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. 203(d). The FLSA’s definition of “employ” “includes to suffer or permit to work.”

In accordance with the Ninth Circuit and several other federal court rulings, the Court of Appeals for the Fourth Circuit yesterday held that an employee cannot bring a claim for wages based on allegedly misappropriated gratuities under the FLSA unless the employer used the tip credit set forth in 29 U.S.C. §203(m). Trejo v. Ryman Hospitality Props., 2015 U.S. App. LEXIS 13204 (4th Cir. July 29, 2015).

22(b). It should be noted that federal law requires employers to pay for any time the employee actually performs work during an interruption of sleep.9 W. Va. Code R. § 42-8-9.11(a).10 W. Va. Code Ann. § 21-5C-4.11 29 U.S.C. § 203(m); 29 C.F.R. § 531.50.