Changing Sides — Now the Department of Labor Urges the Supreme Court to Uphold Seventh Circuit Dismissal of FLSA Suit

What are clothes?  That’s one of the issues that the Supreme Court will have to determine when it hears an appeal of Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir. 2012).  And in a surprising twist, last week the Department of Labor changed its stance on the issue since the 7th Circuit originally heard the case.

In Sandifer, a class of 800 former and current hourly workers at U.S. Steel’s steel works in Gary, Indiana argued that U.S. Steel violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., because they failed to compensate the plaintiffs for time spent changing into work clothes (clothes changing time), and also time spent walking from the locker room to their work stations and then back again at the end of the day (travel time).  U.S. Steel and the Union have never agreed to compensate the workers for clothes changing time or travel time in their several collective bargaining agreements between 1947 and 2012, but the plaintiffs argue that the Act itself requires the compensation and thus overrides any mutually agreed-upon contractual provisions.

Section 203 (o) of the FLSA excludes from the time during which an employee is entitled to be compensated at the minimum hourly wage, “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time, by the express terms of or by custom or practice under a bona fide CBA applicable to the particular employee.”  The employees argued that 203 (o) is inapplicable because they are not putting on “clothes” within the meaning of the FLSA, but instead they are putting on required safety equipment, or as they termed it, “personal protective equipment.”  The 7th Circuit found that their uniforms were both “clothes” and “safety equipment,” since by their nature clothes provide a measure of protection from the elements.  The court further added that to if compensated for both changing time, and traveling time, the plaintiffs would actually be hurting themselves in the long run since their employers would have to lower their wages since they would be less willing to pay them a high wage for their time spent not making steel.

The plaintiffs also argued that the time spent walking from their changing room to their work stations represented a “principle activity.”  The Supreme Court held in Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956), that principal activities include all activities that are integral and indispensable parts of the principle activities for which the employee is employed. But the Portal to Portal Act 29 U.S.C. § 251 et seq., exempts from the minimum wage and overtime provisions of the FLSA “walking, riding or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform.” The court however used the same reasoning that if clothes-changing time is legally not compensated, then travel time can be legally not compensated since the workers bargained that compensation away for higher working wages.

The Department of Labor participated as an amicus curia on the side of the plaintiffs during their appeal to the 7th Circuit, though they merely echoed the arguments of the plaintiffs and then made it clear that they disagreed with the Department’s stance on Section 203(o) during the Bush Administration; the Bush-era Department had found that clothes changing could not be a principal activity under the Portal to Portal Act.

The 7th Circuit found that the case should be dismissed.  The plaintiffs have since appealed, and the case will be heard by the Supreme Court.  However, just last week, the Department of Labor has changed its stance and now is arguing that the safety equipment is not clothing, in contradiction to its 2010 Administrator’s Interpretation which reversed the DOL’s 1997 Administrator’s Interpretation on the same issue.  Specifically, the DOL has stated it does not urge deference to the 2010 Administrator’s Interpretation.  The Court will hear the case in its next session.