Justices Say Steel Workers' Donning/Doffing Of Gear Is ‘Changing Clothes' Under FLSA

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By Jay-Anne B. Casuga  

Jan. 27 --The time spent by U.S. Steel Corp. employees to put on and take off various pieces of protective gear falls within the scope of a Fair Labor Standards Act provision that allows employers to deny compensation for “changing clothes” pursuant to a collective bargaining agreement, the U.S. Supreme Court held Jan. 27 (Sandifer v. U.S. Steel Corp., 2014 BL 20038, U.S., No. 12-417, 1/27/14).

Writing for a unanimous court, Justice Antonin Scalia upheld a U.S. Court of Appeals for the Seventh Circuit decision that FLSA Section 203(o) allowed U.S. Steel to withhold pay from workers for their clothes-changing time under a bargaining agreement with the United Steelworkers ( 678 F.3d 590, 18 WH Cases2d 1825 (7th Cir. 2012)).

The high court found that most of the protective gear worn by U.S. Steel's employees fell within the meaning of the term “clothes” in Section 203(o).

“Dictionaries from the era of [Section] 203(o)'s enactment indicate that 'clothes' denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress,” Scalia wrote. “[N]othing in the text or context of [Section] 203(o) suggests anything other than the ordinary meaning of 'clothes.' ”

He added that the court saw “no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing.” However, Scalia also declined to adopt what he called U.S. Steel's “capacious construction” of the term clothes to include “essentially anything worn on the body.”

Furthermore, the court defined the term “changing clothes” to mean substituting or altering one's dress.

The court acknowledged that some of the gear worn by U.S. Steel's employees did not satisfy its definition of “clothes,” namely the workers' glasses, earplugs and respirators.

The court ruled that the time workers spent putting on and taking off those non-clothes items did not need to be compensated because the “vast majority” of the disputed time was spent on donning and doffing “clothes” under Section 203(o).

Attorneys Praise 'Common Sense' Ruling

Mark W. Batten, a management attorney with Proskauer in Boston, Jan. 27 said he was “not surprised” by the “common sense view” taken by the Supreme Court.

Batten, a partner in the firm's Labor & Employment Law Department and co-head of the Class/Collective Action Group, said the decision tells employers and unions that they have been correctly reading provisions in their bargaining agreements withholding pay for the time employees spend donning and doffing protective gear as falling within FLSA Section 203(o).

Lawrence C. DiNardo, a management attorney for Jones Day in Chicago who represented U.S. Steel, told Bloomberg BNA in a Jan. 27 interview that he also believes the high court took a “common sense” approach that will be “helpful” in resolving disputes concerning the changing of clothes under FLSA Section 203(o).

DiNardo pointed specifically to the high court's direction that lower courts should focus on whether the period at issue can “on the whole” be fairly characterized as time spent changing clothes and thus noncompensable pursuant to Section 203(o).

That approach, he said, is “much more useful” than examining every piece of equipment and determining whether they fit into the definition of “clothes” and whether the donning and doffing of certain non-clothes items would be noncompensable under the de minimis doctrine.

“On both the employer and employee sides, folks should see this as clearing away a good bit of confusion,” DiNardo said.

'Favorable' for Employers With Unionized Workforces

Tammy McCutchen, a management attorney and shareholder with Littler Mendelson in Washington, emphasized in a Jan. 27 interview with Bloomberg BNA that the Supreme Court's ruling impacts only unionized workplaces.



“A parasol protects against the sun, enhancing the comfort of the bearer--just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer,” Justice Scalia wrote. “We see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing.”  


If an employer does not bargain with a union, she said, it cannot rely on the provisions in FLSA Section 203(o), and its employees' time spent donning and doffing protective gear would be compensable if that gear is integral to their principal work activities.

Joseph Tilson, a management attorney and partner with Meckler Bulger Tilson Marick & Pearson in Chicago, said Jan. 27 the decision is “very favorable for employers with a unionized workforce.”

Tilson, who represented the American Meat Institute, which filed an amicus brief in the case, specifically praised the Supreme Court's broad definition of “changing clothes” and its rejection of the argument that Congress intended to exclude from that definition items worn to protect employees from workplace hazards.

Meanwhile, Matthew Ginsburg, associate general counsel of the AFL-CIO in Washington, Jan. 27 said he is “pleased” that the court nevertheless “recognized the commonsense distinction between clothes and equipment” and “stated its disagreement with cases holding that anything worn on the body is clothes.”

“The decision makes clear that employees in the meatpacking and food processing industries who must don substantial required safety equipment must be paid for this time,” Ginsburg said. “Most importantly, the court's decision provides unions and employers with more clarity about the reach of Section [203(o)], which should make collective bargaining in this area easier.”

Attorney Discusses Ruling's Unresolved Issues

McCutchen said the Supreme Court's decision raises some unresolved issues that may be litigated in the future. She and other Littler attorneys filed an amicus brief on behalf of the Grocery Manufacturers Association in support of U.S. Steel.

She cited the court's decision to focus on whether employees spend the “vast majority” of their time donning and doffing clothes or non-clothes items in determining the compensability of that time.

McCutchen, who previously served as administrator of the Labor Department's Wage and Hour Division between 2001 and 2004, posed a hypothetical in which a worker spends 30 seconds putting on pants, which would fall within the Supreme Court's definition of “clothes” under Section 203(o), and then spends another 30 seconds putting on ear and eye protection, which would be considered non-clothes items.

“What if it's 50/50?” she said. “What then?”

McCutchen said she would have preferred that the Supreme Court follow the Seventh Circuit's de minimis analysis, but acknowledged that the DOL “would not have liked” that approach given the agency's position that an act cannot be de minimis if it occurs on a regular basis.

In addition, McCutchen said she thinks “there's still going to be litigation” on what constitutes clothing.

She pointed out that the Supreme Court not only rejected the employees' narrow definition of clothes, but also U.S. Steel's broad interpretation that the term should include accessories and tools worn by workers.

For example, although the ruling lists “work gloves” among the items that constitute “clothes,” what would happen if those gloves were not “normal gloves,” but chain-metal gloves like those used by meat plant workers, she asked.

When asked for comment on the decision, a spokeswoman for the Labor Department, which enforces the FLSA, Jan. 27 said the agency is deferring to the Justice Department, which represented the federal government at oral argument. However, DOJ officials did not respond to Bloomberg BNA's comment requests.

Eric Schnapper, a professor at the University of Washington School of Law in Seattle who represented the U.S. Steel employees, did not respond to Bloomberg BNA's Jan. 27 request for comment.

About 800 Workers in Putative Collective Action

In 2007, current and former employees of U.S. Steel's Gary, Ind., plant brought a putative collective action against the company in the U.S. District Court for the Northern District of Indiana. Approximately 800 workers from that facility, as well as other plants in Michigan and Indiana, eventually opted into the action.

The employees sought overtime pay for the time they spent donning and doffing required personal protective equipment and traveling between their locker rooms and work stations.

A worker's protective gear included a flame-retardant jacket, pants, a hood, a hardhat, a “snood,” wristlets, work gloves, leggings, steel-toed boots, safety glasses, earplugs and a respirator.

Pursuant to its collective bargaining agreement with United Steelworkers, U.S. Steel did not compensate employees for the time they spent putting on and taking off the protective equipment.

Seventh Circuit Affirmed Dismissal

In October 2009, the district court partially granted summary judgment to U.S. Steel, finding that the bargaining agreement between the company and the union rendered the workers' donning and doffing time noncompensable based on FLSA Section 203(o).

Section 203(o), 29 U.S.C. § 203(o), states that an employee's compensable working hours do not include “any time spent in changing clothes” at the beginning or end of the workday, where such activity was “excluded from measured working time” by the “express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”

In addition, the district court said even if certain items were not “clothes” within the meaning of Section 203(o), the time spent donning and doffing that equipment still was not compensable under the de minimis doctrine.

The district court, however, denied summary judgment to U.S. Steel on the workers' “travel time” claim. It found that the donning and doffing of work clothes, even if unpaid, may be considered an integral and indispensable part of workers' principal activities, and thus the workers' travel time was compensable.

The Seventh Circuit affirmed the lower court's dismissal of the employees' donning and doffing claim, but reversed its ruling on the travel time claim.

The workers petitioned for Supreme Court review, and the justices granted certiorari with respect to only their donning and doffing claim. The high court heard oral argument in November.

High Court Examines Meaning of 'Clothes.'

In affirming the Seventh Circuit's ruling, the Supreme Court first examined the meaning of the word “clothes,” observing that a “fundamental canon of statutory construction” requires words to be given their “ordinary, contemporary, common meaning,” unless otherwise defined.

Dictionaries in existence in 1949, when Section 203(o) was added to the FLSA, indicate that clothes includes “items that are both designed and used to cover the body and are commonly regarded as articles of dress,” the court said.

“That is what we hold to be the meaning of the word as used in [Section] 203(o),” Scalia wrote. “Although a statute may make a 'departure from the natural and popular acceptation of language,' … nothing in the text or context of [Section] 203(o) suggests anything other than the ordinary meaning of 'clothes.' ”

The court rejected the employees' argument that clothes should exclude protective items designed and used to keep them safe from workplace hazards.

Scalia found that the workers apparently based their stance on the definition of clothes in Webster's New International Dictionary of the English Language (Webster's Second), which states that clothes is a “general term for whatever covering is worn, or is made to be worn, for decency or comfort.”

But the court pointed out that the entry in Webster's Second does not explicitly or implicitly exclude from the definition of clothes items that function to protect the wearer. Protection and comfort “are not incompatible and are often synonymous,” the court said.

“A parasol protects against the sun, enhancing the comfort of the bearer--just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer,” Scalia wrote. “We see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing.”

In addition, the high court said the employees' “proffered distinction” would “run[] the risk of reducing [Section] 203(o) to near nothingness,” as it would “largely limit the application of [Section] 203(o) to what might be called workers' costumes, worn by such employees as waiters, doormen and train conductors.”

Furthermore, the court said the employees' definition conflicts with Section 203(o)'s enactment history, namely Labor Department rules from 1947 that provided an illustration related to principal activities that mark the beginning of a worker's compensable work time.

Specifically, the rules discussed a situation in which a chemical plant employee cannot perform his or her job without first putting on “certain clothes” required “by law, by rules of the employer, or by the nature of the work.”

The court also said the employees' position contradicts its ruling in Steiner v. Mitchell, 350 U.S. 247, 12 WH Cases 750 (1956), that the clothes-changing time of employees working with toxic materials would have been noncompensable if a relevant bargaining agreement provision had existed.

Although the Supreme Court acknowledged that “it may be impossible to eliminate all vagueness when interpreting a word as wide-ranging as 'clothes,' ” it disagreed with employees that its general definition “will cast a net so vast as to capture all manner of marginal things.”

In order for Section 203(o) to apply, the court said, the clothes at issue must be integral to an employee's job performance.

The court said its position is “considerably more contained” than the “capacious construction” of clothes as including an employee's “whole outfit,” as argued by U.S. Steel and its amici.

“That interpretation is, to be sure, more readily administrable, but it is even more devoid of a textual foundation than [the employees'] offering,” Scalia said.

The court said certain accessories, tools and equipment would not fall within its definition of clothes.

Court Defines 'Changing Clothes.'

The Supreme Court next rejected the employees' contention that they were not “changing clothes” within the meaning of Section 203(o) because they put their protective gear on over their street clothes.

The court agreed that the word, “change,” can mean to substitute. However, it said it also could be defined as “to alter.”

“We think that despite the usual meaning of 'changing clothes,' the broader statutory context makes it plain that 'time spent in changing clothes' includes time spent in altering dress,” Scalia wrote. “Where another reading is textually permissible, [Section] 203(o) should not be read to allow workers to opt into or out of its coverage at random or at will.”

Sotomayor Disagrees With Footnote

In a footnote to the opinion, the court said it “need not disapprove” the principle that FLSA exemptions shall be “narrowly construed against the employers seeking to assert them” in order to resolve the case.

The FLSA's exemptions appear in Section 213, the court said in the footnote, adding that it declared in a footnote in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 19 WH Cases2d 257 (2012), that the “narrow-construction principle” for exemptions is “inapplicable to a provision appearing in [Section] 203.”



“[T]here is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood,” Scalia wrote. “If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work.”  


Justice Sonia Sotomayor, without discussion, disagreed with that footnote.

Based on the footnotes in Christopher and the present case, McCutchen of Littler Mendelson said she believes it is “no longer an unquestioned absolute of FLSA construction that issues are going to be construed narrowly against the employer.”

She said the footnotes potentially could “become huge in litigation in lower courts,” as it opens the door for courts to reject that “standard view that everything in the FLSA is construed narrowly against the employer.”

Steel Workers' Were 'Changing Clothes,' Court Says

Turning to the merits of the case, the Supreme Court unanimously held that U.S. Steel employees' time spent donning and doffing their protective gear is not compensable because they were “changing clothes” under Section 203(o).

The court said the workers' flame-retardant jackets, pants, hoods, hardhats, snoods, wristlets, work gloves, leggings and steel-toed boots are “clothes” because they are “designed and used to cover the body and are commonly regarded as articles of dress.”

However, the court said the workers' glasses, earplugs and respirators do not fall within its definition of “clothes.”

Scalia observed that the district court and the Seventh Circuit in this case, as well as some other appeals courts, have relied on the doctrine de minimis non curat lex (the law does not take account of trifles) to avoid having to deduct the time employees spend on putting on and taking off non-clothes items from noncompensable clothes-changing time.

Raising doubts that the de minimis doctrine can be applied in the instant case, the court said Section 203(o) “can fairly be said is all about trifles--the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs.”

“Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood,” Scalia wrote. “If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work.”

Courts Directed to Look at Time 'On the Whole.'

But the court nevertheless agreed with the “basic perception” that Congress did not intend Section 203(o) to “convert federal judges into time-study professionals.”

“That is especially so since the consequence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining,” Scalia said.

The Supreme Court directed courts to inquire “whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.' ”

Where an employee “devotes a vast majority of the time in question” to donning and doffing non-clothes equipment or items, the court said, the entire period would be compensable because it would not constitute “changing clothes” under Section 203(o), even where the employee also put on or took off some clothes.

However, if an employee spends “the vast majority of time” donning and doffing clothes, “the entire period qualifies and the time spent putting on and off other items need not be subtracted,” the court said.

“Just as one can speak of 'spending the day skiing' even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so also one can speak of 'time spent changing clothes and washing' when the vast preponderance of the period in question is devoted to those activities,” Scalia wrote.


To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Sandifer_v_United_States_Steel_Corp_No_12417_US_Jan_27_2014_Court.



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