On Tuesday, the United States Supreme Court granted certiorari in,Sandifer v. U.S. Steel Corp., a case involving compensable time under the FLSA. In the underlying case, a group of steel workers filed suit against their employer, U.S. Steel Corp., for unpaid wages for time spent putting on and taking off safety clothes necessary to perform their jobs. The clothing included, flame retardant pants and jackets, work gloves and boots, a hard hat, safety glasses, ear plugs, and a shood. (A picture of a man modeling the gear is apparently found in the opinion of the underlying case, but I can’t seem to find a link!). Other issues were discussed in the case, but the only question that the Supreme Court will answer is “what constitutes ‘changing clothes’ within the meaning of section 203(o)?”
Generally, “donning and doffing” protective gear, clothing, and uniforms is compensable time under the FLSA. The clothing being put on by the steelworkers most certainly qualifies as protective gear so this case seems open and shut. Right?! The key factor in this case is the terms of the collective bargaining agreement in place. The agreement specifically provided that employees would not be compensated for the time spent putting on their protective clothing. Again this seems like an open and shut issue because typically, employees cannot waive their right to wages under the FLSA. However, Section 203(o) allows for a genuine collective bargaining agreement to exclude time spent “changing clothes” from compensable time.
And this is where the issue arises. What is meant by the term “changing clothes”? Is protective gear “clothes” within the meaning of Section 203(o)? The 7th Circuit believed it to be. The 7th Circuit found that despite the protective nature of the items being put on by the employees, the items were “clothes” and the action of taking the protective gear off and on was properly excluded from compensable time in the collective bargaining.
The Department of Labor issued an opinion on this matter in mid-2010. It determined that protective gear does not qualify as “clothes” under Section 203(o). The only circuit that seems to agree with the DOL is the 9th Circuit, with all other Circuits that have passed on the issue siding with the 7th Circuit. The 8th Circuit, which Iowa is a part of, has not decided the issue.