Authored by Jessica Schauer Lieberman
On Monday, the U.S. Supreme Court will hear argument in a case that will directly impact employers relying on § 203(o) of the FLSA – a provision that 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 – but also holds broader interest for employers as a result of the DOL’s involvement in the issue.
As readers of this Blog already know (see here), the question before the Court in Sandifer v. U.S. Steel is a relatively straightforward issue of statutory interpretation: is protective gear “clothes” for purposes of § 203(o)? The plaintiffs in the case are steel workers appealing a Seventh Circuit decision holding that they did not need to be paid for time they spent changing into and out of flame-retardant work clothes in a locker room at the plant.
The broader story, however, is the government’s repeated changes in position on this issue. While the DOL issued a 2010 Administrator’s Interpretation and argued before the Seventh Circuit last year (see discussion here) that protective gear is not clothes, in an amicus brief filed this summer, the administration switched sides, arguing that protective garments are “clothes” for purposes of section 203(o) of the FLSA (see discussion here). The administration eschewed the issue of its own about-face in its amicus brief, mentioning the 2010 Administrator’s Interpretation only in a footnote, but the Solicitor General has been granted leave to participate in oral argument on U.S. Steel’s behalf and may face questions from the Court about its rationale.
We will be present at the argument on Monday and will report on the proceedings immediately thereafter.