The Supreme Court granted the
petition for certiorari but limited the Court's review to the donning/doffing
issue in Sandifer v. United States Steel Corp. This Emerging Issue Analysis
explains the Seventh Circuit decision and comments on the Court's decision to
In Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012) [an enhanced version of this opinion is available to lexis.com
subscribers], a three-judge panel of the Seventh Circuit ordered the
dismissal of a collective action asserting that U.S. Steel violated the Fair
Labor Standards Act ("FLSA") by failing to pay the plaintiffs for
time spent putting on and taking off ("donning/doffing ") their work
clothes in a plant locker room and for time spent walking from the locker room
to their work stations, and back again at the end of the day ("travel
time"). On February 19, 2013, the Supreme Court granted the petition for
certiorari filed in the case but limited the Court's review to the
donning/doffing issue. This emerging issue analysis explains the decision below
and comments on the Court's decision to review.
The Seventh Circuit's Decision
As described by the Seventh Circuit, the "clothes" the plaintiffs
"donned" at the beginning of the work day - and "doffed"
the end of the work day - consisted primarily of protective apparel such as
flame-retardant pants and jacket, work gloves, safety boots a hard hat, safety
glasses, ear plugs, and a hood that covers the top of the head, the chin, and
the neck. The plaintiffs (and their predecessors) have never been compensated
for the time spent donning and doffing this clothing notwithstanding the fact
that, for 55 years (as of 2012), the positions occupied by the plaintiffs have
been covered by a collective bargaining agreement between U.S. Steel and the
Steelworkers Union ("Union").
Are the Clothes Really Clothes?
Section 3(o) of the FLSA, presented a serious obstacle to plaintiffs' claims
because it excludes from compensable time:
any time spent in changing clothes . . . at the beginning or end of each
workday which was excluded from measured working time . . . by the express
terms of or by custom or practice under a bona fide
collective-bargaining agreement applicable to the particular employee.
Seeking a way around this barricade, the plaintiffs argued that is was
inapplicable to their situation because they were not changing into, and out
of, "clothes;" rather, they were donning and doffing "safety and
The Seventh Circuit rejected the argument. First it held that regardless of
whether one considers glasses and ear plugs as clothing, donning and doffing
those items would not be compensable because the time involved is de
minimis. The court went on to conclude that the remaining apparel at issue
constituted "clothes" within the meaning of Section 203(o) for a
number of reasons. [footnotes omitted]
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