Spectators could be excused for confusing a recent U.S. Supreme Court oral argument session with an episode of TLC’s What Not to Wear. On Nov. 4, the Court heard arguments in Sandifer v. U.S. Steel Corp.(No. 12-417) which focused on how to define “clothes” versus protective equipment and whether time spent donning those items is compensable. The justices asked an interesting range of questions including whether a parka worn by an employee toiling in a freezer was more likely to be considered apparel than one worn in the South Pole.
In Sandifer, unionized U.S. Steel Corp. workers brought a Fair Labor Standards Act collective action against their employers alleging that they should have been paid for the time spent before and after shifts putting on and taking off protective safety items, including safety goggles, hard hats, flame retardant clothes, steel-toed boots and ear plugs.
The 7th U.S. Circuit Court of Appeals affirmed a lower court finding that the protective equipment was clothing and that time spent putting on and taking off that clothing was therefore not compensable under the collective bargaining agreement between the employer and employees. FLSA Section 203(o) says that employees subject to a CBA are not entitled to pay for time spent donning and doffing clothes if the agreement precludes it.
The Court heard three different positions outlined by the steelworkers, the employer and the U.S. government. The government and the employer were largely on the same page, but differed marginally on how they defined clothes.
The petitioners in Sandifer, a group of 800 former and current unionized steelworkers, have argued that not everything worn by individuals should be classified as clothes. Eric Shnapper, arguing on behalf of the steelworkers said that a distinction should be drawn between items designed and worn to protect workers from workplace hazards and regular items of clothing.
U.S. Steel argued that time spent putting on clothing — using a definition that included all the items the steelworkers put on — was not compensable because it was excluded under a CBA, which is permitted under FLSA Section 203(o).
“Clearly the items here are clothes, the government agrees they’re clothes. They’re clothes by any measure, any test. But on a going-forward basis, this notion that there is a dichotomy between clothes and equipment is a problem,” Lawrence DiNardo, the respondent’s attorney.
DOL has sided with the employer in this question, but argued for a more nuanced middle of the road definition. Anthony Yang, assistant to the solicitor general arguing on behalf of DOL and the federal government, said that the government agreed largely with U.S. Steel, but took a position that there were some types of items (such as protective items worn in the meat packing industry) that “would not normally be thought of as clothing.”
The question of what items constitute clothes and where the definition lines can be drawn is an enormously complicated one. The justices pointed that out in some of their comments and questions during oral arguments.
“You cannot get that very precise limitation out of the word ‘clothes.’ You just can’t. And say it’s protective gear for work, it’s not other protective gear. Okay? It’s only those earrings you have to wear for work, otherwise earrings are not clothes? Ah but if they’re required for work they become clothes. It doesn’t make any sense,” Justice Scalia said.
At the very end of the oral arguments, Justice Kagan asked why no federal agency had issued any regulations to clarify this question given how complicated it was, and that it was the kind of statutory interpretation that usually falls under agency purview.
Justice Scalia offered one theory, “Too complicated is why.”
Overall the justices did not appear to be receptive to the steelworkers arguments, but until the ruling comes out there is no certainty on how the case will go. Donning and doffing questions have plagued the courts for years. The Court is expected to issue a ruling in Sandifer sometime in 2014.
For additional analysis of this case and in-depth information about FLSA compliance, go to http://hr.complianceexpert.com/.