Supreme Court Finds Middle Ground On Definition Of 'Clothes' Under The FLSA

On Monday, January 27, 2014, in unanimously affirming the Seventh Circuit's judgment in favor of U.S. Steel Corporation in Sandifer v. United States Steel Corp., the Supreme Court forged a middle ground on the meaning of the term "changing clothes" in section 3(o) of the Fair Labor Standards Act (FLSA). The outcome of this 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. However, the Supreme Court's opinion also leaves some unanswered questions on the compensability of clothes changing under section 3(o).

Section 3(o)

Under the FLSA, employees must generally be paid for time spent 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 Sandifer Case

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."

The district court granted summary judgment in U.S. Steel's favor on the issue of whether the various items were "clothes" within the meaning of FLSA section 3(o), and therefore determined the employees need not be paid for time spent donning. The district court also ruled...