Justices Agree to Review FLSA Status Of Worker Time Spent on Protective Gear

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By Kevin P. McGowan

Granting a petition filed by U.S. Steel Corp. employees, the U.S. Supreme Court agreed Feb. 19 to review whether workers' time spent putting on and taking off safety equipment falls within a Fair Labor Standards Act provision denying compensation for time spent “changing clothes” (Sandifer v. U.S. Steel Corp., U.S., No. 12-417, cert. granted 2/19/13).

The justices will review a U.S. Court of Appeals for the Seventh Circuit decision holding that under FLSA Section 203(o), U.S. Steel need not pay union-represented steel workers for time spent at the plant changing into and out of work clothes, including personal protective equipment ( 678 F.3d 590, 18 WH Cases2d 1825 (7th Cir. 2012); 91 DLR A-2, 5/10/12).

The appeals court said a district court should have dismissed the workers' FLSA “travel time” claim as well, because changing clothes is not a “principal activity” under the act so employee time spent going back and forth between the locker room and their work stations cannot be compensable either.

In 2009, the U.S. District Court for the Northern District of Indiana had granted summary judgment to U.S. Steel on the employees' “donning and doffing” claim, but ruled the workers could proceed with an FLSA travel time claim (202 DLR A-7, 10/22/09).

Court Grants One of Three Questions
The employees posed three questions of FLSA interpretation in their petition seeking review of the Seventh Circuit decision. But the Supreme Court limited its review to the first question: What constitutes “changing clothes” within the meaning of FLSA Section 203(o)?

The workers urged the justices to resolve a split among federal appeals courts on whether time spent donning and doffing employer-required safety equipment falls within the FLSA's “changing clothes” exclusion from paid working time.

The Seventh Circuit decision directly conflicts with a Ninth Circuit ruling that personal protective equipment is distinct from the “clothes” subject to Section 203(o) and employees therefore may be entitled to compensation for time spent donning and doffing safety gear, the workers said.

In its brief opposing review, U.S. Steel pointed out that in collective bargaining agreements spanning 65 years, the United Steelworkers and U.S. Steel agreed that time workers spend changing into and out of protective clothing is not part of the compensable work day.

The Seventh Circuit therefore correctly ruled under FLSA Section 203(o), which permits employers and unions to agree that time spent changing clothes is not part of employees' working hours, that the workers' statutory claims must be dismissed, U.S. Steel said.

About 800 Workers Joined Collective Action
Section 203(o) provides that an employee's FLSA compensable working hours shall exclude “any time spent in changing clothes” at the beginning or end of the workday that is excluded from “measured working time” by the “express terms” of, or by the parties' “custom or practice” under, a collective bargaining agreement applicable to the particular employee.

Most of the named plaintiffs were employees of a large U.S. Steel plant in Gary, Ind., while others worked at company plants in Michigan and Indiana. Approximately 800 current and former U.S. Steel employees joined in the FLSA collective action, which sought overtime pay for their alleged significant time spent donning and doffing required personal protective equipment and traveling between their locker rooms and work stations. U.S. Steel compensated workers only for the 40 hours a week spent at their work stations.


The Seventh Circuit decision “exacerbates what was already an entrenched circuit court split” regarding the meaning of “changing clothes” under Section 203(o), meaning that whether the provision applies or employees have triable FLSA claims will depend on their geographic location, the workers said.


The federal district court ruled that under Section 203(o), the plaintiffs lacked an FLSA claim for time spent “changing clothes,” which the court said includes protective gear. But the district court said the FLSA might cover plaintiffs' travel time between locker rooms and work stations.

On an interlocutory appeal, the Seventh Circuit affirmed Section 203(o) barred the donning and doffing claim. But it also decided the plaintiffs lack a travel time claim, since unpaid changing clothes time cannot be deemed a “principal activity” for which employers must compensate the travel to or from such activity.

Circuit Conflict Warrants Review
The “controlling legal question” is whether employees' donning and doffing of safety equipment constitutes “changing clothes” for purposes of Section 203(o), the workers said.

The Seventh Circuit decided that it did, meaning Section 203(o) excluded the employees' time spent on such activities from FLSA working hours. But the Ninth Circuit in Alvarez v. IBP Inc., 339 F.3d 894, 8 WH Cases2d 1601 (9th Cir. 2003) (151 DLR AA-1, 8/6/03), has ruled that required safety gear is distinct from ordinary work clothes and personal protective equipment therefore does not fall within the Section 203(o) exclusion, the workers said.

Supreme Court review is warranted because the Seventh Circuit decision “exacerbates what was already an entrenched circuit court split” regarding the meaning of “changing clothes” under Section 203(o), the workers said.

The conflict harms both employers and employees, as it means that whether Section 203(o) applies or employees instead have triable FLSA claims will depend on their geographic location, the workers said.

That situation may be compounded by the existence of national collective bargaining agreements, which “may have differing legal consequences at different plants,” the workers said. “These considerations give added force to the need to resolve these circuit conflicts.”

The Seventh Circuit decision also raises, or exacerbates, circuit conflicts regarding whether employees are entitled to compensation for travel time to their work stations after donning required protective gear, even if it constitutes “changing clothes” under Section 203(o), the workers said. This is because putting on required safety gear is a “principal activity” that starts the compensable work day, the workers said.

The Seventh Circuit acknowledged the conflict between its ruling that a travel time claim is precluded because the employees were not paid for their changing time and the Sixth Circuit decision in Franklin v. Kellogg Co., that employees may have an FLSA right to pay for travel time between locker rooms and work stations even if their time spent putting on safety gear is not compensable (168 DLR AA-1, 8/31/10).

But the Supreme Court will not reach the “principal activity” and travel time issues, as the justices expressly limited review to the meaning of “changing clothes” under Section 203(o).

Eric Schnapper of the University of Washington School of Law in Seattle is counsel of record for the petitioners.

No 'National Importance,' Company Says
Meanwhile, U.S. Steel argued in opposing review that the Ninth Circuit decision in Alvarez v. IBP “has not been followed in almost [10] years” and there are signs even the Ninth Circuit would “reconsider that decision in an appropriate case.”

The Seventh Circuit and “numerous other circuits that take the same approach” interpreting Section 203(o)'s scope to include protective clothing and gear are “clearly correct,” U.S. Steel said.

Moreover, U.S. Steel said the FLSA question presented is “not of national importance,” as it “affects only a small class of employees who work in a unionized workplace, are regularly required to spend non-de-minimis amounts of time donning and doffing work clothing, and whose [collective bargaining agreement] excludes changing time from the workday.”

The Seventh Circuit noted that petitioners have been paid “a competitive wage” under a labor agreement “aggressively negotiated” by the Steelworkers and that if the plaintiffs won their donning and doffing claims, U.S. Steel and the union might be compelled by market forces to negotiate a lower pay rate to adjust for a lengthened workday, U.S. Steel said.

“The petition for certiorari therefore implicates only whether petitioners may obtain a short-term windfall in the form of supra-competitive compensation beyond what was bargained for by their union,” U.S. Steel said.

Lawrence C. DiNardo of Jones Day in Chicago is counsel of record for U.S. Steel.

By Kevin P. McGowan

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