Author: Michael Cardman, XpertHR Legal Editor
May an employer avoid paying a unionized employee for time spent putting on and taking off certain protective gear, such as safety glasses and ear plugs? What about ordinary clothing with special safety features, such as fire-retardant jackets or steel-toed boots?
The Supreme Court is expected to resolve these questions after it agreed on February 19 to hear the case Sandifer v. United States Steel Corp., +678 F.3d 590, 595 (7th Cir. 2012), cert. granted (U.S. Feb. 19, 2013) (No. 12-417).
The Fair Labor Standards Act (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); see Employee Compensation > Hours Worked > Clothes-Changing or Washing Under a CBA.
The plaintiffs in the Sandifer case were steelworkers 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 size of the plant, about 4,000 acres, some of them 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.
The employees sued the employer, arguing the highly specialized gear they put on and took off did not count as clothes under the meaning of the statute. A district court and then the 7th Circuit Court of Appeals rejected their claims, so they appealed to the Supreme Court.
In their petition to the Supreme Court, the plaintiffs noted that there is a split in the circuits (which is one of the main reasons why the Supreme Court will agree to hear a case):
- 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, however, to address a second question posed in the plaintiffs' petition: 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.
In the absence of a decision about that question, it is likely that many employers may be able to minimize their potential overtime liability because time spent putting on and taking off specialized gear could be excluded as de minimis even if the gear does not count as clothes under § 203(o). See Employee Compensation > Hours Worked > De Minimis Time and Rounding.