Lareau on Sandifer v. United States Steel Corp.: Supreme Court to Review "Donning/Doffing" Issue

Lareau on Sandifer v. United States Steel Corp.: Supreme Court to Review "Donning/Doffing" Issue

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 review.

Excerpt:

Introduction 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
Facts

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 protective equipment."

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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