Are work clothes “clothes” under the FLSA? And how much weight should be given to the Department of Labor’s opinion on this issue, especially when that opinion has changed more than once?
Yesterday, the Supreme Court agreed to answer these questions when it agreed to review the Seventh Circuit’s decision in Sandifer v. U.S. Steel, which we discussed in a post on May 2012. In short, the plaintiffs in Sandifer claimed that they were owed wages for time spent changing into and out of their work clothes in a locker room at the plant. But the company argued that it did not have to pay for these activities because the parties had agreed that time spent changing clothes would not be compensable during collective bargaining. And FLSA §203(o) 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. So that raised the question: are work clothes or personal protective gear “clothes” under the FLSA?
In June 2010, the DOL issued an Administrator’s Interpretation that took a narrow view of the definition of “clothes.” According to the DOL, the exception for changing “clothes” does not include protective gear. The DOL also stated that changing clothing–even if not itself a compensable activity–may nevertheless be considered a “principal activity” sufficient to trigger the continuous workday, making subsequent activities compensable.
In Sandifer, the Seventh Circuit rejected plaintiffs’ attempts to rely on the DOL’s Interpretation. The Court stated that, “[p]rotection–against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting–is a common function of clothing, and an especially common function of work clothes by factory workers. It would be absurd to exclude all work clothes that have a protective function from section 203(o), and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.” The Court also held that the plaintiffs’ workday started when they arrived at their work site, and not when they changed their clothes or started walking to their work areas. The Seventh Circuit refused to give the DOL’s views any weight because the DOL had changed its position three times within a period of less than fifteen years, and it failed to adduce any knowledge or expertise that would justify those shifts in interpretation.
The plaintiffs sought Supreme Court review of the Seventh’s Circuit’s ruling regarding the definition of “clothes” as well as its decision that changing clothes cannot trigger the start of the continuous workday. The Supreme Court, however, only agreed to hear argument on the first of those issues.
The Supreme Court’s agreement to address the definition of “clothes” most immediately impacts employers who rely on 203(o) and a collective bargaining agreement to exclude time spent donning and doffing protective gear. The issue is of key importance to employers in the poultry and meat processing industries, as well as the basic metals industry, which are heavily unionized and where extensive protective gear is required. The issue is also one that the authors of this Blog have been watching for some time; an article published by Seyfarth’s Richard Alfred and Jessica Schauer Lieberman in 2011 criticized the DOL’s Interpretation, highlighting many of the same grounds that were later cited in the Seventh Circuit’s decision.
The decision should also have more far-reaching effects, however, because the Supreme Court is likely to address the deference due to DOL opinions expressed in administrator’s interpretations. The DOL has articulated new or changed interpretations of the FLSA on a wide variety of issues through administrator’s interpretations, opinion letters, and amicus briefs. For example, in a 2010 administrator’s interpretation, the DOL reversed prior opinion letters and found that mortgage loan officers are not exempt. Last June, in Christopher v. SmithKline, the Supreme Court rejected the DOL’s interpretation of the FLSA articulated in an amicus brief. Now, the Court has an opportunity to do the same in the context of an administrator’s interpretation. Depending on how the Court decides Sandifer, it could deal a further blow to the DOL’s efforts to make changes in the law without engaging in rule-making.