Supreme Court Hears Oral Argument And Appears To Seek Middle Ground On Definition Of 'Clothes' Under The FLSA

On Monday, November 4, the Supreme Court heard oral arguments in Sandifer v. United States Steel Corp. on the issue of the meaning of the term "clothes" in section 3(o) of the Fair Labor Standards Act (FLSA). Under the FLSA, generally, employees must be paid for donning and doffing protective clothing if they are required by law or the employer to change into such clothing at the work site. However, section 3(o) of the FLSA, passed by Congress in 1949, provides that in a unionized setting time spent "changing clothes" may be excluded from compensable time by a collective bargaining agreement or by a custom or practice of non-compensation for such activities. The outcome of the case will have a significant impact on unionized employers in a wide variety of industries where workers change in and out of protective and/or sanitary clothing at the start and end of their workdays, including food processing, light and heavy industrial manufacturing, chemical processing, energy production, and health care.

Sandifer is notable for the oscillating positions taken by the Department of Labor (DOL) in the last 16 years on the meaning of "clothes" under section 3(o). Another interesting aspect of the case is that the employees are seeking compensation for activities their union specifically agreed were non-compensable in contract negotiations while the action was pending.

At oral argument, the Supreme Court wrestled with the different definitions of "changing clothes" offered by the petitioner-employees and respondent-employer, as well as a new middle ground alternative offered by the government that would incorporate certain protective equipment items if they were "ancillary" to donning and doffing clothing items.

The Case Below

In Sandifer, current and former U.S. Steel unionized employees claimed they were not properly compensated under the FLSA for pre- and post-shift time spent donning and doffing items such as flame-retardant jackets and pants, hoods, hard hats, gloves, wristlets, leggings, steel-toed boots, safety glasses, and ear plugs, and for time spent walking from the locker room to their work stations after changing clothes. Since 1947, two years before enactment of section 3(o), the collective bargaining agreement (CBA) between U.S. Steel and the Steelworkers provided that the company would not compensate employees for "time spent in preparatory and closing activities." In 2008, after Sandifer was filed, the union and U.S. Steel negotiated a new CBA in which the union agreed to stronger and more specific language confirming that employees would not be compensated for time spent "donning and doffing protective clothes."

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