WASHINGTON, D.C. — (Mealey’s) The time workers spend putting on attire that may look like regular clothes but is worn to protect them is compensable under the Fair Labor Standards Act (FLSA), despite a collective bargaining agreement (CBA) stating otherwise, Eric Schnapper of the University of Washington School of Law in Seattle told the U.S. Supreme Court on Nov. 4, arguing on behalf of employees of United States Steel Corp. (Clifton Sandifer, et al. v. United States Steel Corporation, No. 12-417, U.S. Sup.; See 3/1/13, Page 9).
When questioned by Chief Justice John G. Roberts Jr. about whether the United Steelworkers of America had filed an amicus brief in support of the employees, Schnapper responded that it had not because it agreed not to in the last CBA. The chief justice went on to state that the lack of filing appeared to support the notion that the question is something that should be left up to the collective bargaining process. Schnapper disagreed, opining that by doing so, workers would be stripped of their statutory rights.
Donning And Doffing
Clifton Sandifer, an employee of United States Steel Corp., filed a class complaint in the U.S. District Court for the Northern District of Indiana against his employer on behalf of 800 former and current hourly workers. He alleged that U.S. Steel violated the FLSA by failing to compensate him and the class of employees for the time they spend putting on and taking off their work clothes and walking from the locker room to their work stations and back.
The CBA between U.S. Steel and the workers’ union does not require compensation for that time. However, Sandifer argued that the FLSA does require the compensation, so that overrides the CBA. Judge Robert L. Miller Jr. ruled that Section 203(o) of the FLSA does not require that the time spent “changing clothes” be compensated. However, he refused to dismiss the portion of the case seeking compensation for the travel time. U.S. Steel filed an interlocutory appeal. Sandifer cross-appealed.
In a May 8, 2012, opinion, the Seventh Circuit U.S. Court of Appeals dismissed the cross-appeal, finding that Sandifer did not seek leave to appeal. The appellate panel also ruled that Sandifer’s case had no merit and should be dismissed.
Sandifer petitioned the U.S. Supreme Court.
Lawrence C. DiNardo of Jones Day in Chicago argued on behalf of U.S. Steel that “[w]hen Congress enacted [Section] 203(o) [of the FLSA], the Portal to Portal Act had already relieved employers of the obligation to pay for changing into or out of ordinary clothing. There is little question that 203(o) was directed at the sort of clothing that, absent 203(o), could be deemed to be a principal activity, the changing into or out of clothing that was not already excluded by the preliminary and postliminary exclusion in the Portal to Portal Act.”
Assistant to the Solicitor General Anthony A. Yang of Washington presented arguments on behalf of the United States in support of United States Steel. “Congress used the gerund ‘changing’ to describe an activity. It is a verb form that’s modified by changing, by clothes. So it is an activity of changing clothes. We think that activity also includes ancillary matters. So for instance, if a worker comes into a locker room, spends some time doing the combination on the locker, opens it up, opens the locker, that is not actually changing clothes per se, but it’s part of the activity of changing clothes. So, for instance, if the worker also happens to put on some goggles, pop in an ear plug, maybe even snap on a utility belt in the context of changing clothes, those things are part of ‘changing clothes’ as part of the statute,” he argued.
However, when questioned about donning equipment, Yang stated the government feels differently when it comes to things like armor sleeves and chain mail gloves like those used in the meat packing industry. “Those types of things, we think, would not normally be thought of as clothing. And so when you put on a smock, either before or under or over it, we think that the overall process there might not be fairly deemed to be considered changing clothes,” Yang opined.
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