Last week the U.S. Supreme Court heard oral argument in its first employment law case of its October 2013 term, Sandifer v. United States Steel Corp. [an enhanced version of the 7th Circuit opinion is available to lexis.com subscribers], which asks under what circumstances employers are required to treat as compensable the time employees spend putting on and taking off protective clothing.
The heart of the dispute in the definition of “clothes.” Under the Fair Labor Standards Act, the time changing into and out of clothing is not compensable, while time putting on and taking off “protective gear” is.
So, what qualifies as clothing and what qualifies as protective gear?
The employees’ attorney argued to the Court that anything that employees wear for their jobs is “protective gear,” even if it looks like ordinary clothing. Justice Alito, however, was skeptical of that definition:
I don’t know when a human being first got the idea of putting on clothing. Probably the main reason, was for protection. It’s for protection against the cold, it’s for protection against the sun. It’s for protection against thorns. So you want us to hold that items that are worn for purposes of protection are not clothing?
Yet, other Justices expressed equal skepticism over the employer’s argument that anything an employee wears for work is clothes, not protective gear.
Reading the tea leaves, this is a case that cries out for a compromised result. Neither side seemed to persuade the Court that either polarized position was a reasonable interpretation of the FLSA. Instead, look for the Court to craft a rule that any gear, whether typically worn as clothing or not, is compensable “protective gear” if it’s intended use is for protection for the specific needs of the job in question.
I’ll report back on the Court’s decision when it is published sometime next year.
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