Inside: Will the Supreme Court close the door on a Fair Labor Standards Act claim?

The United States Supreme Court recently heard oral arguments in a case that could put the kibosh on a genre of wage-and-hour litigation under the FLSA

The United States Supreme Court recently heard oral arguments in a case that could put the kibosh on a genre of wage-and-hour litigation under the Fair Labor Standards Act (FLSA). Its decision could also place significant restrictions on the ability of the United States Department of Labor (DOL) to change legal positions depending upon which political party is in the White House. Then again, the Supreme Court could simply decide a technical issue arising under the FLSA as it applies to one group of employees working for one employer.

The FLSA requires an employer to pay an employee for all time spent working. However, for employees working under a collective bargaining agreement, employees are not entitled to compensation for time spent changing clothes at the beginning or end of each workday if that time is excluded from “working time” under that collective bargaining agreement. This is known as the “Section 3(o) exemption.”

In Sandifer v. U.S. Steel Corp., employees sued their employer to be paid for the time they spent putting on and taking off protective gear in a locker room and for the time they spent walking to and from the locker room to their work stations. The protective gear consisted of flame-retardant pants and jacket, work gloves, work boots, a hard hat, safety glasses, ear plugs and a hood. Their collective bargaining agreement did not require compensation for changing clothes.

The federal district court and the United States Court of Appeals for the 7th Circuit rejected the employees’ claims. The 7th Circuit held that changing into and out of the safety clothes was not compensable under the collective bargaining agreement, and that, to the extent such items as the hard hat and safety glasses were not technically “clothes,” the time spent putting them on and taking them off was de minimis and was not compensable.

The 9th Circuit has held in another case that special protective gear worn by employees is not “clothes,” and employees must be compensated for changing into and out of such gear. Other circuits have defined “clothes” as anything one wears, including hard hats and safety glasses. The Supreme Court granted certiorari on the issue of the meaning of “clothes” under Section 3(o) of the FLSA.

Meanwhile, the DOL’s position on what constitutes “clothing” has been in flux. During the Clinton Administration, the DOL took a narrow view of that term, thereby requiring more employers to pay employees for changing into and out of protective gear. During the Bush Administration, the DOL took an employer-friendly expansive view of “clothes.” In 2009, with the advent of the Obama Administration, the DOL reverted to its pre-Bush Administration view. In a 2010 Administrator’s Interpretation, the DOL stated the Section 3(o) exemption did not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. Finally, in an amicus brief to the Supreme Court in this case, the DOL took the position that the ordinary meaning of clothes is “covering for the human body, or garments in general,” and the protective items at issue in the case fell within that ordinary meaning. Hence, it argued, the time spent changing into and out of those clothes was not compensable for the employees whose terms and conditions of employment were governed by a collective bargaining agreement that did not require compensation for changing clothes.

The concern over the Supreme Court’s decision to hear the case was that a Supreme Court decision limiting the meaning of “clothes” for Section 3(o) would have a substantial impact on unionized employers in industries where employees change in and out of protective gear at the start and end of their workday. If protective gear was found not to be clothes, unionized employers around the country could be liable for millions of dollars in back wages for failing to pay employees for putting on and taking off their protective gear. In addition, a Sandifer decision could give the Supreme Court an opportunity to weigh in on the deference to be placed on the DOL’s politicized interpretations of key FLSA provisions in future litigation.

On Nov. 4, 2013, the Supreme Court heard oral arguments. The employees’ lawyer argued that any item that is designed and worn to protect the wearer from a workplace hazard should not be considered clothes within the meaning of Section 3(o). U.S. Steel’s attorney took the position that “changing clothes” for purposes of Section 3(o) should encompass the entire process of putting on or taking off the “work outfit” the employer and a union agreed was necessary for an employee to wear on the job. By the end of the argument, none of the Justices appeared to accept either interpretation. They seemed more inclined to rule that the protective gear worn by the U.S. Steel employees met the ordinary definition of “clothes,” and thus changing into and out of them would not be compensable.

Based only on the Court’s reaction to the oral argument, it appears less likely that the decision will be as far-reaching as originally feared. A decision is expected no later than the summer of 2014.

Contributing Author

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Howard Kastrinsky

Howard Kastrinsky is a partner at King & Ballow, a Meritas member firm, where he is head of the Employment and Discrimination Section....

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