Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Monday, November 4, the Supreme Court will hear 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. The Court’s decision will have a substantial impact on unionized employers in a wide variety of industries where workers change in and out of protective clothing at the start and end of their workday, including food processing, light and heavy industrial manufacturing, chemical processing, energy production, and health care.
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 their gear at the work site. However, section 3(o) of the FLSA, which was passed by Congress in 1949, provides an exception to the rule for a unionized workforce by allowing employers and unions to bargain over whether and under what terms employees will be paid for “time spent in changing clothes or washing at the beginning or end of each workday.”
Since 1947, two years before section 3(o) was enacted, the collective bargaining agreement between U.S. Steel and the United Steelworkers provided that the company would not compensate employees for “time spent in preparatory and closing activities.” Apparently not satisfied with the deal struck in the CBA, employees represented by the Steelworkers sued, alleging that U.S. Steel violated the FLSA by failing to pay employees for donning and doffing flame-retardant pants and jackets, work gloves, steel-toed boots, a hard hat, safety glasses, ear plugs, and a hood that covers the top of the head, the chin, and the neck. The question before the Court is whether this type of protective gear is included within the scope of the term “clothes” in Section 3(o). If the Court answers in the negative, unionized employers around the country could be liable for millions and more millions in back wages for failing to pay employees for donning and doffing time notwithstanding collective bargaining agreements in which unions agreed that such time would not be compensated.
Also interesting to watch for in this case is the Court’s reaction to the DOL’s flip-flopping opinion letters on the definition of the term “clothes.” During the Clinton Administration, the DOL took a narrow view of the meaning of “clothes.” In 2002* and 2007, under the Bush Administration, the DOL issued opinion letters taking the broader view that protective gear such as that worn by steelworkers is clothing covered under Section 3(o). Under the Obama Administration, the DOL reversed that opinion in an Administrator’s Interpretation published in 2010. Before the Supreme Court, however, the DOL flipped again – filing an amicus brief in favor of U.S. Steel and a broad definition of the term “clothes.” In its amicus brief, the DOL stated: “The government does not urge deference to the 2010 Administrator's Interpretation in the context of this case.” Yet, despite this repudiation, as of November 1, the 2010 Administrator’s Interpretation is still posted on the DOL’s website as the agency’s current enforcement position on this issue while notations on the 2002 and 2007 opinion letters indicate that both have been “withdrawn.”
Unions are also on both sides of this issue. The AFL-CIO filed an amicus brief on behalf of the employees, but the Steelworkers union has not weighed in at any level in this litigation. Rather, during contract negotiations that occurred in 2008, after this lawsuit was filed, the Steelworkers agreed to stronger and more specific language in the CBA confirming that employees would not be compensated for time spent “donning and doffing protective clothing.”
We are continuing to follow developments in the case.
*Tammy McCutchen is currently a Shareholder in Littler Mendelson's Washington, D.C. office. She was Administrator of the DOL’s Wage & Hour Division and issued the 2002 DOL Opinion Letter. She filed an amicus brief in support of U.S. Steel on behalf of the Grocery Manufacturers Association.