By: Tatiana Sulovska
Dressing for work is a politically charged question in more ways than you might think. Not to force the Hans Christian Andersen puns, but some US employers and some courts want to see clothing, where none may be. Tomorrow, November 4, the Supreme Court will hear argument in a donning and doffing case regarding an overtime pay dispute. The certiorari was granted in Sandifer v. US Steel to address the question “[w]hat constitutes ‘changing clothes’ within the meaning of section 203(o)” of the Fair Labor Standards Act of 1938.
The provision regulates hours worked and excepts “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”
Unionized steelworkers from Gary, Indiana filed the suit against US Steel in 2007, looking to get compensated for time spent changing clothes and travelling to their workstations. Donning and doffing the protective gear, and covering by foot or by bus the four-thousand-acre mill, which spans seven miles along Lake Michigan, can add up to an extra hour or two per day. Eight hundred current and former hourly workers have joined the collective action.
Some of the workers have to put on respirators; flame-retardant hoods, jackets, and pants; Kevlar sleeves, and more. When the Seventh Circuit sided with US Steel, Judge Posner distinguished only the protective glasses and ear plugs from the rest of the safety equipment, as being clearly outside the statutory exception, since they “are not clothing in the ordinary sense,” but decided that since putting them on is “a matter of seconds,” it’s “not compensable, because de minimis.” All remaining items fell under Section 203(o) as excluded from overtime pay, because they were covered under the successive collective bargaining agreements with US Steel since 1947.
Judge Posner accepted the argument presented by US Steel lawyers, that extra compensation would threaten the company’s market position: “The steel industry is international and highly competitive, and unions temper their wage demands to avoid killing the goose that lays the golden eggs.” One wonders if indeed the effect of paying the extra wages would be so crippling to US Steel. While the unionized employees at the mill don’t receive pay for donning and for removing the protective gear after work, the nonunion workers do.
So, what are “clothes,” really? According to Forbes, the meaning depends on who’s in office: Under President Bush, Department of Labor filed an amicus asking the Seventh Circuit to rule in favor of US Steel, while the Clinton and the Obama administrations have interpreted the FLSA in a contrary manner, distinguishing personal protective gear from street clothing. The Sandifer decision is thus bound to be illustrative just as much of the court deference, as in regards to the correct FLSA reading.
Circuits are split on the issue: for example, in 2011, the Tenth Circuit excluded turkey processing plant employees from overtime eligibility for donning and doffing. Similarly, in 2010, the Second Circuit affirmed a summary judgment in favor of Con. Edison, where nuclear power plant workers asked that putting on protective gear and going through security procedures upon entry be compensated. However, the Fourth Circuit found that donning and doffing in a poultry processing plant “at the beginning and the end of each workday is compensable as ‘work’ under the FLSA” in 2011. In this last instance, the documented mean of the time it takes an employee to put the gear on and take it off was just over twenty minutes. Whether time really is money is at issue here, and the time is ripe, indeed, for a Supreme Court decision. The results will no doubt impact many.
 Samuel Bagenstos, Argument preview: “Changing clothes” and overtime pay, SCOTUSblog (Nov. 1, 2013, 3:10 PM), http://www.scotusblog.com/2013/11/argument-preview-changing-clothes-and-overtime-pay/.
 Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir. 2012) cert. granted, 133 S. Ct. 1240 (U.S. 2013) (No. 12-417) [hereinafter Sandifer].
 Petition for a Writ of Certiorari at i, Sandifer, 2012 WL 4750284, at *i.
 29 U.S.C. §§ 201 et seq. (West 2006) [hereinafter FLSA].
 29 U.S.C. § 203(o) (West 2006).
 Joseph S. Pete, Should steelworkers get paid to get ready for work? The Times of Nw. Ind., NWITimes.com (Oct. 25, 2013, 8:30 PM), http://www.nwitimes.com/business/local/should-steelworkers-get-paid-to-get-ready-for-work/article_fc1c8f90-9b04-58db-a491-07a9afd2a679.html.
 Lawrence Hurley, Supreme Court to hear workers’ claims vs U.S. Steel, Reuters.com (Feb. 19, 2013, 10:10 AM) http://www.reuters.com/article/2013/02/19/us-usa-courts-safetygear-idUSBRE91I0QS20130219.
 Bagenstos, supra note 1.
 Sandifer v. U.S. Steel Corp., 678 F.3d 590, 593 (7th Cir. 2012) cert. granted, 133 S. Ct. 1240 (U.S. 2013).
 Please note that § 203(o) is not an exemption. Gorman v. Consol. Edison Corp., 488 F.3d 586, 597 (2d Cir. 2007).
 Sandifer, 678 F.3d at 591-92.
 Id. at 594.
 Pete, supra note 6.
 Jim Burns, Sandifer v. U.S. Steel Corp: Does the FLSA require employers to pay employees for time spent putting on and taking off protective clothing, even though the union contract does not require such pay? in The First Monday In October Heralds A Bumper Crop Of New Employment Decisions (Part 2), Forbes.com (Oct. 10, 2013, 1:53 PM) http://www.forbes.com/sites/theemploymentbeat/2013/10/10/the-first-monday-in-october-heralds-a-bumper-crop-of-new-employment-decisions-part-2/.
 Salazar v. Butterball, LLC, 644 F.3d 1130, 1134, 1143-1145 (10th Cir. 2011) (resting the decision on a local law reading to exclude turkey processing from the food and beverage industry).
 Gorman v. Consol. Edison Corp., 488 F.3d 586, 589 (2d Cir. 2007).
 Perez v. Mountaire Farms, Inc., 650 F.3d 350, 360 (4th Cir. 2011) cert. denied, 132 S. Ct. 1634 (U.S. 2012).
 Id. at 362.