DOL.jpgBy Alex Passantino, Jessica Schauer Lieberman and Arthur Rooney

Those watching the U.S. Department of Labor in recent years have grown used to seeing major policy shifts.  The DOL has issued guidance in the form of “Administrator’s Interpretations,” amicus briefs, and regulations that deviated from or even rejected the views of previous administrations on topics such as the fluctuating workweek, the tip credit [See here], the outside sales [See here], and administrative exemptions [See here], and the types of activities that can mark the beginning of the compensable workday.

In an amicus brief [here] filed with the Supreme Court last Friday in Sandifer v. U.S. Steel [See discussion about case here], the DOL continued that trend.  Well, sort of.  Although the Department again reversed course on an issue, this time it departed from a prior position taken in this administration.  Contrary to the position it took in its 2010 Administrator’s Interpretation and before the Seventh Circuit last year [See discussion here] (which represented a change in Departmental position, which itself also represented such a change), the administration sided with the employer, arguing that protective garments are “clothes” for purposes of section 203(o) of the FLSA.

The plaintiffs in Sandifer are steel workers who claim that they are owed wages for time spent changing into and out of flame-retardant work clothes in a locker room at the plant.  They seek reversal of a Seventh Circuit decision holding that this time is non-compensable pursuant to the workers’ collective bargaining agreement and § 203(o), which states that time spent “changing clothes . . . at the beginning or end of each workday” is excluded from compensable time if it is treated as non-work time by a collective bargaining agreement.

In support of their position, the plaintiffs rely in part on a 2010 Administrator’s Interpretation that took the position that the exception for changing “clothes” does not include protective gear.  Both before and after that Interpretation issued, however, case law rejected the DOL’s position.  The authors of this Blog have also long questioned the Administrator’s Interpretation [See discussion here].

The Solicitor General’s amicus brief unceremoniously departs from the DOL’s earlier guidance, stating in a footnote that “[t]he government does not urge deference to the 2010 Administrator’s Interpretation in the context of this case.”  Instead, the government asks the Supreme Court to reject the position that it took last year before the Seventh Circuit and in its 2010 Administrator’s Interpretation.  The government now adopts the reasoning of the Seventh Circuit and argues that “protection is a common function of clothing” and the workers’ interpretation of the term “clothes” would “exclude the types of work clothing worn in many professions that should lie at the core of Section 203(o).”  The brief lines up against the position of the AFL-CIO, which filed a brief in support of the Sandifer plaintiffs in May.

The reason for the administration’s change of position remains unclear:

  • It may be a reaction to a series of judicial decisions rejecting DOL guidance on a number of issues.  The Supreme Court declined to defer to the government’s position on application of the outside sales exemption last year [See discussion here]; the D.C. Circuit recently rejected (on administrative procedure grounds) another Administrator’s Interpretation regarding the exempt status of mortgage loan officers [See discussion here]; and a federal court in Oregon struck down the administration’s tip-credit regulations [See discussion here].  This brief — with its express request not to defer to the 2010 Administrator Interpretation —  may be part of a larger effort to preserve some semblance of deference to Departmental guidance (or, at the very least, to prevent additional “bad law,” in the Department’s view, from being made on the issue).
  • It may be a recognition that changing the rules of the FLSA game on this issue could have a significant impact on collective bargaining, upsetting the balance negotiated between employers and labor on the compensability of this time (and the resulting trade-offs in other bargaining areas).
  • It may be a difference of opinion between the Solicitor General’s Office (which is part of the Department of Justice and which is listed as the counsel of record on the Supreme Court brief) and the Department of Labor attorneys (including the Solicitor of Labor) who cleared the Administrator Interpretation and who were responsible for the positions taken in the Seventh Circuit.

Or, it may be another reason entirely.  Whatever the reason, employers can hope that Sandifer will mark the end of an era of frequent DOL policy reversals and the beginning of a more measured — and consistent — approach by the Department.