Authored by Jessica Schauer Lieberman

This morning the Supreme Court heard oral argument in Sandifer v. U.S. Steel, an FLSA case in a group of steelworkers at a Gary, Indiana factory claimed they should be paid for time spent changing into flame-retardant suits, steel-toed boots, hardhats and gloves, even though their union agreed to exclude that time from the compensable workday.  The case most directly affects unionized employers, but the position taken by the U.S. Solicitor General, appearing as amicus in favor of U.S. Steel, could have a broader impact on the de minimis doctrine relied on by employers of all types.

The question before the Court in Sandifer is whether the term “clothes” in section 203(o) of the FLSA — which allows employers to exclude time spent by their employees “changing clothes . . . at the beginning or end of each workday” from compensable time pursuant to the terms of or a custom or practice under a collective bargaining agreement — includes protective clothing.  The plaintiffs argued for a broad rule excluding from the definition any items intended to protect the worker from “workplace hazards.”  The Seventh Circuit rejected that approach, finding that most of the gear the plaintiffs wore was clothing and the few remaining items — such as earplugs and goggles — took so little time to put on that it could be excluded as de minimis.

Several of the Justices made clear that they were looking to create a broad rule to achieve clarity rather than simply decide whether the specific items worn by the steelworkers in this case are “clothes.”  Even the liberal justices, however, made clear that they did not believe that Plaintiffs’ proposal is the appropriate rule.  Justice Sotomayor took issue with the Plaintiffs’ approach to the extent it excluded “things that look like clothes,” and Justice Ginsburg similarly commented that photograph of the gear in the record “look[ed] like clothes” to her.  Justice Kagan asked why there should be a distinction between items required by an employer for sanitary reasons and items required in order to protect the employee. 

Counsel for U.S. Steel argued that the Court should consider all items with the purpose of covering the body to be “clothes,” but also went further, arguing that in determining what activities fall under § 203(o), the Court should look at the entirety of the block of time in which employees are “changing clothes” rather than focus on the individual items.  This approach would sweep in not only actual changing time, but also the time it takes to open one’s locker and close it back up again.  Justice Scalia bristled at this suggestion, saying that it was not “principled” because the statute itself uses the word “clothes.”  Justice Breyer quipped that this approach would create a category of “constructive clothes” that are not clothes.

Although Justice Breyer’s comment received laughs from the courtroom, it was not in fact very far at all from the position the U.S. Solicitor General’s Office advocated.  The government urged the Court to ignore the 7th Circuit’s holding with respect to de minimis time and to create a new category of items that are “ancillary” to clothes-changing instead.  The administration expressed concern that the 7th Circuit’s ruling would disrupt current law limiting what can be considered de minimus time.

Surprisingly, the DOL’s frequent turnabouts on the scope of § 203(o) received no discussion.  As readers of this Blog are aware, DOL issued a 2010 Administrator’s Interpretation and argued before the Seventh Circuit last year that protective gear is not clothes, in both cases rejecting prior DOL guidance to the contrary.  The administration then switched sides before the Supreme Court.  Only Justice Kagan mentioned this history in passing, asking why the DOL had never attempted notice-and-comment rulemaking on the issue.

The Court seemed most likely to adopt a middle-of-the-road rule that excludes some “accessory” items like glasses but includes clothing with a  protective function, but it its likely to be several months before the Court issues its decision.