Argument preview: “Changing clothes” and overtime pay

Samuel Bagenstos is a Professor of Law at the University of Michigan Law School.

What constitutes “changing clothes”?  A simple question, perhaps, but one the Court is poised to decide in Sandifer v. United States Steel Corporation, to be argued on Monday.  In Sandifer, the Court will interpret a provision of the Fair Labor Standards Act that allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time “any time spent in changing clothes or washing at the beginning or end of each workday.”  At issue in the case is whether “changing clothes” includes the putting on or taking off of any outfit worn at work or only some subset of work outfits, but the Court could avoid a broad ruling simply by holding that the items worn by the petitioners at work plainly fit within the statutory text.

The Sandifer suit was brought by employees at U.S. Steel facilities in Illinois, Indiana, and Michigan, most of whom work at the company’s flagship plant in Gary, Indiana.  Depending on their particular jobs, workers at these plants must wear a variety of different kinds of protective clothing and equipment – for example, hardhats, safety glasses, earplugs, respirators, “snoods” (protective hoods that extend to the chest), flame-retardant hoods, flame-retardant jackets, flame-retardant pants, work gloves, “wristlets” (protective Kevlar sleeves that cover the lower arm and the opening of the work glove), steel-toed boots, and “leggings” (protective Kevlar sleeves that cover the lower leg and the opening of the boot).  At least some of the time, although it is not clear how often, the workers wear these items over their street clothes, but on other occasions they apparently remove their street clothes before donning the protective clothing and equipment they will wear on the job.  The workers put many of these items on in a locker room at the plant, before traveling to their workstation to begin their eight-hour shift.  At the end of the shift, the workers return to the locker room to remove their protective clothing and equipment.

Pursuant to collective bargaining agreements dating back to 1947 between U.S. Steel and the United Steelworkers, workers are paid only for the eight-hour shift they perform at their workstation.  They are not paid for time spent donning and doffing protective clothing in the locker room, nor are they paid for travel from the locker room to the workstation.

Under the Fair Labor Standards Act, employees are entitled to time-and-a-half pay for each hour they work beyond forty hours in a week.  Employees at the U.S. Steel plants at issue generally work five eight-hour shifts at their workstations per week, and spend additional uncompensated time putting on and removing their protective clothing and traveling to and from their workstations.  Under the FLSA, they therefore would get overtime if the time spent putting on and removing their protective clothing and equipment were counted as work time.  However, Section 203(o) – a provision added to the FLSA in 1949 – provides that:

In determining . . . the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Clifton Sandifer, an employee at the Gary plant, filed this FLSA action to recover backpay for the time he had spent putting on and taking off protective clothing and equipment, as well as the time he had spent traveling from the locker room to his workstation and back.  Several hundred other U.S. Steel employees joined Sandifer in his suit.  U.S. Steel moved to dismiss, and the district court granted that motion in part.  It concluded that the time spent donning and doffing protective clothing and equipment was “time spent in changing clothes,” which a collective bargaining agreement could properly make noncompensable under Section 203(o).  The court determined that the workers’ claim to be compensated for the travel time between the locker room and their workstations could proceed, however.

On interlocutory appeal from the partial dismissal, the Seventh Circuit ruled that the entire case should have been dismissed.  In an opinion by Judge Posner, the court of appeals agreed with the district court that, “given the terms of the collective bargaining agreement, U.S. Steel doesn’t have to compensate its workers for the time they spend changing into and out of their work clothes.”  The court held that, with two or three exceptions, the protective items worn by U.S. Steel workers constituted “clothing,” and that donning and doffing those items constituted the act of “changing clothes.”  (The exceptions were safety glasses, earplugs, and perhaps the hard hat, though the court determined that the time spent putting on those items was de minimis and accordingly not compensable in any event.)  But it concluded that the company also had no obligation to compensate the workers for their travel to their workstations.  Accordingly, the court concluded that the workers’ case lacked merit.

The workers filed a petition for certiorari, in which they asked the Supreme Court to review both of the Seventh Circuit’s holdings.  On February 19, 2013, the Court agreed, limited to the following question: “What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the Fair Labor Standards Act?”

In their briefing on the merits, the workers make a series of arguments regarding the meaning of the terms “clothes” and “changing clothes.”  The workers begin by arguing that the term “clothes” is ambiguous.  But “changing clothes,” they contend, is not.  “Changing clothes,” in their view, “refers to substituting certain clothes for others, not to merely putting on something else” over them.  Because evidence in the record suggests that many U.S. Steel workers put their flame-retardant jackets and pants on over their street clothes, rather than first removing their street clothes before donning these protective items, the workers suggest that the time they spent in the locker room was not time “changing” clothes.

Circling back to the definition of “clothes” itself, the workers argue that the term should be understood to encompass “ordinary apparel,” rather than items that “both are used to protect employees against workplace hazards and were designed to provide such protection.”  They begin by criticizing lower court decisions that (unlike the Seventh Circuit here) have interpreted the term as reaching anything that covers some part of the body, including such items as goggles, earplugs, and knife holders.  Although the Seventh Circuit did not apply such a broad definition, the workers criticize that court for a know-it-when-you-see-it approach that leaves unclear just what items count as clothes.  An item designed to protect the wearer from hazards, the workers argue, would not ordinarily be thought of as clothes, yet the Seventh Circuit held that the term embraced a variety of protective equipment.  A rule excluding such protective items from the definition of “clothes,” by contrast, would accord with the ordinary meaning of the term; would be consistent with Congress’s expectations in 1949; and would allow courts to determine the scope of the exclusion by referring to the well-established Occupational Safety and Health Act regulations defining “personal protective equipment.”

U.S. Steel responds that the activity of changing clothes “refers to the process of putting on the entire outfit worn by an employee at the beginning of the day, and taking off that outfit at the end of the day.”  The company argues that in 1949 Congress understood that this process of changing clothes would include donning and doffing protective items such as boots, aprons, leggings, and hoods—items that it argues are “clothes under any definition.”  Congress would not, U.S. Steel says, have wanted unions and employers to be able to bargain over the compensability of time workers spend changing into pants—but not flame-resistant pants.  That clothes are protective, the company says pithily, “does not mean that they cease to be clothes.”

The Solicitor General agrees with U.S. Steel that the items worn by the workers in this case were “clothes” for purposes of the statute.  The Department of Labor issued guidance in 2010 that interpreted “clothes” as embracing only “apparel” and not “protective safety equipment.”  That guidance, which largely accords with the workers’ argument in Sandifer, rescinded opinion letters the Department had issued during the George W. Bush administration, and returned to the interpretation the Department had published in opinion letters during the Clinton administration.  It is notable that the Solicitor General, in a brief also signed by the Solicitor of Labor, pointedly declines to urge the Court to defer to the Obama administration’s 2010 guidance.

The briefing in Sandifer is full of fascinating hypotheticals: Are the members of the rock band KISS “changing clothes” when they apply their trademark make-up before a concert?  Is a police officer “changing clothes” when he puts on his gun at the beginning of a shift?  What about Captain Kangaroo’s wig, an astronaut’s spacesuit, or a physicist’s pocket protector?  But it will be easy for the Court to resolve the case without reaching any of those hypotheticals simply by following the path laid out in the Solicitor General’s brief: hoods, jackets, gloves, pants, leggings, and boots are readily understood as “clothes,” whether or not they are protective in nature, and putting those items on at the beginning of a shift is readily understood as “changing clothes.”