After a brief hiatus, I’m happy to report that you will be
again be able to check this blog for updates on timely, interesting, and
sometimes crazy stories from the world of employment and labor law. Although
our posts will probably not be up as often as they were last fall, you can
expect around a post a week looking at new developments in the legal world.
Recently, the Supreme Court granted cert to a case that
seeks to define what constitutes “clothes” for the purposes of the FLSA. The FLSA allows employers to exclude time
spent “changing clothes” from working time as long as the exclusion is agreed
to in a collective bargaining agreement or there is a long history of
nonpayment in the industry. In the
specific case, Sandifer v. U.S. Steel,
the employees of the steel mill put on safety gear in a locker room before
beginning their shifts. Because the mill
was large, many workers had to then take buses to their worksites after putting
on safety gear. This process often took a considerable amount of time,
sometimes adding up to several hours a week. The employees filed suit claiming
that the safety gear did not qualify as “clothes” for the purposes of the FLSA,
and that thus they should have received payment for the time spent putting on
the equipment.
There has been a longstanding split among the circuit courts
on this issue. The 4th, 6th,
10th, and 11th Circuits have held that “clothes” includes
anything the employee wears, an interpretation that would likely cover most
kinds of safety gear an employee would wear. As such, employees would not be
compensated for time spent putting on such equipment. The 7th
Circuit has held that not everything an employee wears qualifies as clothing,
an interpretation that would exclude some items such as safety glasses, hard
hats, and ear plugs from the FLSA exemption. Finally, the 9th
Circuit has held that “clothing” does not include “specialized protective gear,”
such as fire retardant jackets and pants, steel toed boots, and gloves.
It seemed timely for the Supreme Court to take
up the issue, given the discrepancy between the various Circuit opinions. The
Court declined to look at the second issue in the case, which examined whether
changing clothes can constitute a principal activity under the FLSA such that
all time would be compensable regardless of the type of clothing the employee
was wearing.