Sandifer v. U.S. Steel Corp. — FLSA Section 203(o)

This month the Supreme Court of the United States will hear oral arguments on Sandifer v. U.S. Steel Corp., coming out of the Seventh Circuit, dealing with the “changing clothes” language under Section 3(o) of the Fair Labor Standards Act. Sandifer deals with a group of steelworking employees who are required to put on protective gear at the beginning of each work day and taken off at the end of each work day–without pay. The employees are seeking overtime pay for that time under FLSA’s overtime provisions. The case will have implications for employers across the nation. Not only in manufacturing but other industries where employees regularly change into uniforms at the worksite.

Sandifer is not the only case addressing Section 203(o); but it will be the case that decides the scope of the section’s protections.

A brief description of the facts and holding of Sandifer v. U.S. Steel Corp.

The facts in Sandifer v. U.S. Steel Corp.:

Workers at the United Steel Corporation brought a class action suit against the company arguing that the Fair Labor Standards Act required the company to compensate them for time spent changing into and out of work clothes and the transit time from the locker room to their work stations. The Act states that an employer does not need to compensate employees for time spent “changing clothes.” United States Steel Corporation moved for summary judgment. The district court granted the motion as it relates to compensation for changing clothes but not in relation to compensation for transit time.

The Court held:

Yes. Justice Antonin Scalia delivered the opinion of the 9-0 majority. The Court held that safety gear falls within the parameters of “clothes” for the purposes of the Fair Labor Standards Act and therefore is subject to the separate collective bargaining agreement that does not provide compensation for changing into and out of safety gear. Because the statutory context makes it clear that the concept of “clothes” refers to items that are necessary for job performance, there is no need to construe the term more strictly. Additionally, since “changing” clothes does not require the substitution of one outfit for another, the act of donning or doffing safety [gear] can be considered “changing clothes” for the purposes of the Act.

(Summarized by Oyez.)

Also see the SCOTUSblog more extensive coverage of Sandifer here.

Changing clothes and the donning and doffing rule under the Fair Labor Standards Act

Let’s break down the rules at issue in Sandifer. In many jobs employees begin and end their job putting on and taking off some clothing, uniform, equipment, or protective gear related to their jobs. Under the original Fair Labor Standards Act all time spent performing these tasks were compensable time because those acts are integral to performing the core job functions. In 1947 Congress passed the Portal to Portal Act to narrow the compensable time under the Fair Labor Standards Act. Under the Portal to Portal Act amendments to the Fair Labor Standards Act, donning and doffing (putting on and taking off) protective gear typically was compensable time. According to a Supreme Court opinion on the Portal-to-Portal Act of 1947, “[p]reliminary and postliminary activities are compensable . . . if they are an ‘integral and indispensable part of the [employee’s] principal activities.”

More than fifty years later the Department of Labor reinterpreted the understanding that this was compensable time by redefining these tasks as “changing clothes” as defined by the statute.

This matters because “changing clothes” under section 3(o) of the Fair Labor Standards Act can be excluded from compensable time if the employees work under a collective bargaining agreement that does not expressly require the employer to pay for it. If all protective gear is clothing under the statute then a unionized employer only has to pay for time donning and doffing gear if the collective bargaining agreement includes it as compensable time. If protective gear is not clothing than all employers must pay for time spent donning and doffing (with an exception below).

One exception to an employer potentially paying for all donning and duffing time is the de minimis rule. Under this rule an employer can legally avoid paying for time spent performing small tasks outside of normal work hours. The idea is that the time spent was so slight that the employee didn’t really lose anything by performing a simple task in a very small slice of time.

What the Supreme Court decided in Sandifer

The Supreme Court took these rules and sliced a middle ground similar to what the federal government advocated in its amicus brief. The Court did not hold that protective gear is always clothes or never clothes. Sometimes it can be clothes. In its unanimous decision the Court held that specific items of protective gear are similar to other items of clothing as that word is normally understood. If an employer operated under a collective bargaining agreement then donning and duffing those items would be compensated if required by the agreement. On the other hand, some protective gear was not like clothing such as hard hats, safety glasses and ear plugs. The Court then held that these items take so little time to put on and take off that such acts are not compensable under the statute because they are de minimis acts when occurring before and after shifts. As a result, the Court sided with U.S. Steel.

What Sandifer means for employees

There are a few things employees can take away from this decision. If you work in a non-unionized workplace and you must put on and take off protective gear to perform your job then you still must be compensated for putting on safety equipment aside from those pieces considered de minimis to put on and take off. If you work under a collective bargaining agreement then the same applies for these de minimis acts but your right to pay for gear considered clothing depends upon the terms of your labor agreement. This is certainly a loss for employees across the board. Employees working under a collective bargaining agreement can negotiate compensation for donning and duffing both protective gear considered clothing and the remainder caught in the de minimis rule.

There are curious details around this case. Two years before passage of the Portal to Portal Act, U.S. Steel entered into a collective bargaining agreement that did not compensate for donning and duffing protective gear. It calls to question whether industries that fought to narrow the FLSA with the Portal to Portal Act had this decision in mind sixty years ago but it took this long for unions and employee rights to weaken enough for the Supreme Court and Department of Labor to favor this interpretation. Also curiously two years after filing the original suit in Sandifer U.S. Steel and its union entered into a new collective bargaining agreement that more clearly denied employees pay for this time. One could wonder what exactly the employees thought they would win in Court that they were not winning at the bargaining table.

Does Sandifer affect employees who don’t wear protective gear at work?

Generally not.

Because Sandifer deals specifically with an FLSA provision regarding clothing it does not affect other time before and after regular shifts where employees perform start up and tear down functions unrelated to clothing. For example, if you work in an office where you must boot your computer or log into a remote server and you are nonexempt then your employer generally must pay for that time. The same is true if you work in a workplace where you must obtain tools or supplies before your official shift time and then return tools or clean up after your official shift time ends.

If you work in a job where you wear a uniform, costume, or other specific attire that you change into at work then the rules have not changed for you.

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