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High Court Will Review FLSA ‘Clothes-Changing’ Case

    The U.S. Supreme Court, on Feb. 19, 2013, agreed to review whether employees’ time spent putting on and taking off safety equipment is time spent “changing clothes” within the meaning of a Fair Labor Standards Act (FLSA) provision. Section 203(o) of the act provides that an employee’s FLSA-compensable working hours exclude “any time spent in changing clothes” at the beginning or end of the workday that is excluded from “measured working time” under a collective bargaining agreement (CBA) (Sandifer v. U.S. Steel Corp., No. 12-417).

    The named plaintiffs in the suit were employees of U.S. Steel plants in Michigan and Indiana. About 800 current and former U.S. Steel employees joined in the FLSA collective action, which sought overtime pay for the time workers spent putting on and taking off required safety equipment. U.S. Steel paid the workers only for the 40 hours a week spent at their work stations. The CBA between U.S. Steel and the workers’ union stipulates that time spent “changing clothes” at the beginning and end of a worker’s shift is not part of the workday.

    In 2009, the U.S. District Court for the Northern District of Indiana granted summary judgment to U.S. Steel on the employees’ claim. The 7th U.S. Circuit Court of Appeals affirmed the lower court’s decision and the plaintiffs sought Supreme Court review.

    Safety Gear Includes Variety of Protective Items

    Employees are required to wear safety gear that includes clothes and non-clothes items, according to the workers’ petition for review. The workers put on fire-retardant jackets, fire-retardant pants and steel-toed boots. They also wear protective items that would not usually be described as clothes, such as protective goggles, earplugs and hard hats. In addition, they wear flame-retardant hoods, flame-retardant “wristlets” that cover the forearm from the elbow to the hand and flame-retardant spats that prevent molten metal from falling into the boots.

    The District Court held that all the safety equipment at issue constitutes “clothes” within the meaning of section 203(o). Although the Appellate Court ruled that some of the safety items, such as the goggles and earplugs are not clothes, it affirmed the trial court’s dismissal of the claim, reasoning that time required to put on and take off the non-clothes items was de minimis and thus not compensable under the FLSA.

    In seeking Supreme Court review, the workers urged the justices to resolve a split among Federal Appeals Courts on whether time spent donning and doffing employer-required safety equipment falls within the FLSA’s “changing clothes” exclusion from paid working time.

    The workers claim that the 7th Circuit decision directly conflicts with a 9th Circuit ruling that personal protective equipment is distinct from the “clothes” subject to Section 203(o) and that employees therefore may be entitled to compensation for time spent putting on and taking off safety gear.

    In its brief opposing review, U.S. Steel pointed out that in collective bargaining agreements over the past 65 years, the United Steelworkers and U.S. Steel agreed that time workers spend changing into and out of protective clothing is not part of the compensable workday. The 7th Circuit therefore correctly ruled under FLSA Section 203(o), which permits employers and unions to agree that time spent changing clothes is not part of employees’ working hours and that the workers’ claims must be dismissed, U.S. Steel said.

    Further, the company pointed out that the 9th Circuit ruling “has not been followed in almost 10 years” and there are signs that even the 9th Circuit would “reconsider that decision in an appropriate case.”

    The 7th Circuit and “numerous other circuits that take the same approach” interpreting Section 203(o)’s scope to include protective clothing and gear are “clearly correct,” U.S. Steel said.

    The case will not be argued until the next Supreme Court term which begins in October 2013.

    Joanne Deschenaux, J.D., is SHRM’s senior legal editor.