Wednesday, February 20, 2013

Supreme Court to Decide What is "Clothes" Under the FLSA

In a case only lawyers that practice wage & hour law can fully appreciate, the Supreme Court of the United States announced that it has granted cert in Sandifer v. United States Steel Corp., +678 F.3d 590, 595 (7th Cir. 2012), cert. granted (U.S. Feb. 19, 2013) (No. 12-417), a case involving the issue of  what constitutes and defines "clothes" for purposes of the Fair Labor Standards Act ("FLSA").  

The FLSA allows an employer to exclude time spent "changing clothes" from working time as long as the employees agree to this in a collective bargaining agreement or if there is a long history of non-payment in the industry and the employees knew about and agreed to the practice. +29 U.S.C. § 203(o).  The plaintiff's in Sandifer are members of a union who work at US Steel Corporation's Gary Works, the largest integrated steel mill in North America. Before starting their shifts, the workers put on safety gear in a locker room. Because of the large size of the plant some of the workers traveled to their work stations on buses. After their shifts ended, they returned to the locker room and removed the gear. The process of putting on gear and traveling to the work site at the start of the day and then returning to the locker room and removing the gear at the end of the day sometimes added up to several hours per week, which is where the money adds up.
The employees filed suit against United States Steel Corp., arguing that the "highly specialized gear" they put on and took off did not count as "clothes" within the meaning of 29 U.S.C. § 203(o). A federal district court and then the 7th Circuit Court of Appeals rejected these claims, so they appealed to the Supreme Court, which accepted cert just yesterday.
This is an issue that has been needing Supreme Court cert for quite some time and in the plaintiff's petition to the Supreme Court for cert, they noted the tremendous split amongst the circuits:
  • The 4th, 6th, 10th and 11th Circuits have held that clothes includes anything an employee wears, an interpretation that would cover several types of safety gear that do not resemble ordinary clothing, such as flame-retardant or aluminized "snoods" designed to protect the head and neck, flame-retardant wristlets that cover the forearm from the elbow to the hand and flame-retardant spats;
  • The 7th Circuit has held that "not everything a person wears is clothing," and so the § 203(o) exception does not cover protective items that would not usually be described as clothes but are generally available and used in a wide variety of other circumstances, such as protective goggles, ear plugs and hard hats; and
  • The 9th Circuit has held that clothes does not include "specialized protective gear ... different in kind from typical clothing," an interpretation that would exclude items that resemble ordinary clothing but have special safety-related elements, such as fire-retardant jackets, fire-retardant pants and steel-toed boots.
The Supreme Court declined to take up a second issue of whether changing clothes can constitute a principal activity under the FLSA, even if it is excluded from working time under § 203(o). If this were the case, then all the time the employees spend on a bus riding to and from the locker rooms would be compensable working time under the FLSA regardless of whether their gear is clothes.

I've written about this topic previously here and here.

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