Section 203(o) of the Fair Labor Standards Act (FLSA) allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time “any time spent in changing clothes or washing at the beginning or end of each workday.” That may sound fairly straightforward, but as U.S. Supreme Court oral arguments in Sandifer v. U.S. Steel Corp. (No. 12-417, Nov. 4, 2013) showed, “changing clothes” is open to interpretation.
The Sandifer lawsuit was brought by workers at U.S. Steel facilities in Illinois, Indiana and Michigan, most of whom work at the company’s flagship plant in Gary, Ind. Depending on their job, employees at these plants must wear a variety of protective clothing and equipment, including hard hats, safety glasses, earplugs, respirators, “snoods” (protective hoods that extend to the chest), flame-retardant hoods, flame-retardant jackets, flame-retardant pants, work gloves, “wristlets” (protective Kevlar sleeves that cover the lower arm and the opening of the work glove), steel-toed boots and “leggings” (protective Kevlar sleeves that cover the lower leg and the opening of the boot). Sometimes the workers wear these items over their street clothes, but sometimes they remove their nonwork attire before donning their protective clothing and equipment. The workers put on many of these accessories in a locker room at the plant before heading to their workstation for their eight-hour shift. At the end of the shift, the workers return to the locker room to remove their protective clothing and equipment.
Pursuant to collective bargaining agreements dating back to 1947 between U.S. Steel and the United Steelworkers, workers are paid only for the eight-hour shift they perform at their workstation. They are not paid for time spent donning and doffing protective clothing in the locker room, nor are they paid for travel time between the locker room and the workstation.
Clifton Sandifer, an employee at the Gary plant, filed an FLSA action to recover back pay for the time he had spent putting on and taking off protective clothing and equipment, as well as the time he had spent traveling from the locker room to his workstation and back. Several hundred other U.S. Steel employees joined Sandifer in his suit.
U.S. Steel moved to dismiss the suit, and the district court granted that motion in part. It concluded that the time spent donning and doffing protective clothing and equipment was “time spent in changing clothes,” which a collective bargaining agreement could properly make noncompensable under Section 203(o). The court, however, also ruled that the workers’ claim for compensation for the travel time between the locker room and their workstations could proceed.
On appeal, the 7th U.S. Circuit Court of Appeals ruled that the entire case should have been dismissed. The appellate court of appeals agreed with the district court that, “given the terms of the collective bargaining agreement, U.S. Steel doesn’t have to compensate its workers for the time they spend changing into and out of their work clothes.” The court held that, with two or three exceptions, the protective items U.S. Steel workers wear constitute “clothing” and that donning and doffing those items constitute the act of “changing clothes.” (The exceptions were safety glasses, earplugs and, perhaps, the hard hat, though the court determined that the time spent putting on those items was de minimis and, accordingly, not compensable in any event.) But it concluded that the company also had no obligation to compensate the workers for their travel to their workstations; thus, it ruled that the workers’ case lacked merit.
The employees filed for Supreme Court review. The high court granted review on Feb. 19, 2013, limited to the following question: What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the FLSA?
What Do “Clothes” Include?
Arguing for Sandifer and other current and former U.S. Steel employees, Eric Schnapper, a University of Washington law professor in Seattle, maintained that Congress did not intend that items worn by the workers in this case be subject to the FLSA exclusion for “changing clothes.” An item is not “clothes” for Section 203(o) purposes if it is worn to protect against workplace hazards and was designed for this purpose, he said.
Representing U.S. Steel, Lawrence DiNardo of Jones Day in Chicago said Section 203(o) must be interpreted in its historical context. In enacting the 1949 amendment, Congress was addressing “activities” that take place before and after work is performed and determining how certain activities should be treated, he explained. The act's reference to “clothes” encompasses the entire “work outfit” an employee must wear, DiNardo said.
Appearing for the Obama administration, Assistant to the Solicitor General Anthony Yang suggested a middle ground. Yang said the government's view is that, under Section 203(o), clothes include articles of dress such as fire-retardant pants and jackets but not tools, equipment or devices workers don or use to perform their job.
Yang said the government also believes that time spent on activities “incidental” to changing clothes, such as opening and closing lockers, would be excluded under Section 203(o).
Justices Focus on Appropriate Test
The justices spent almost the entire argument comparing and contrasting the tests the parties were proposing, Daniel Kaplan, an attorney at Foley & Lardner in Madison Wis., told SHRM Online. The court was critical of the employees’ argument that any item designed to protect against workplace hazards was not “clothes” as envisioned by the statute, he said.
Justice Antonin Scalia called this distinction between clothing and protective clothing both "odd" and "peculiar," noted Stacey Smiricky, an attorney at Faegre Baker Daniels in Chicago.
Instead of attempting to define “clothing,” U.S. Steel argued that the test should focus on the activity of changing clothes and the amount of time spent on that activity. The justices seemed a little more in favor of this, Kaplan said, but “still troubled by the fact that the employer was suggesting you could ignore the word ‘clothes,’ ” with Scalia noting that the statute used that word and did not refer to “activity time.”
Jessica Schauer Lieberman of Seyfarth Shaw’s Boston office thinks the justices may adopt the intermediate position the government offered. "The court seemed most likely to adopt a middle-of-the-road rule that excludes some accessory items like glasses but includes clothing with a protective function."
Most important for employers, “The justices seemed to suggest that they were trying to find a bright-line rule or at least get close to it,” Kaplan said. And the result should provide more guidance for companies with collective bargaining agreements.
“We need a uniform standard; it can’t depend on the particular facts,’’ Smiricky said. “When employers refer to ‘changing clothes,’ it should be clear what they mean.”
And employers should review collective bargaining agreements once the decision comes down, she advised. “What does your agreement say about changing clothes and about what is compensable?”
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.