In Monday’s argument in Sandifer v. United States Steel Corporation, counsel for both the employee-plaintiffs and the employer-defendant offered the Court tests for defining what constitutes “changing clothes,” but neither seemed to get much traction. To the extent that a majority of Justices seemed inclined toward any definition, they seemed to favor following the ordinary-language definition of “clothes” and resolving this case on behalf of the employer. Such a ruling would largely track the position taken by the federal government in its brief and argument in this case.
The case involves a provision of the Fair Labor Standards Act (FLSA) that allows an employer and a union to negotiate collective bargaining agreements under which time spent “changing clothes” will not count towards the statute’s overtime provisions. The employees’ lawyer, Eric Schnapper, and U.S. Steel’s lawyer, Lawrence DiNardo, pressed opposing categorical interpretations of the key statutory phrase. But the Justices appeared to see significant problems with each of those interpretations.
Schnapper extensively pressed the point that, in ordinary parlance, we don’t use the word “clothes” to apply to everything a person wears. He began his argument by listing a variety of items worn by people in the courtroom that we would not ordinarily call clothes. These include glasses, earrings, necklaces, wristwatches, and toupees (the last one prompting Justice Scalia to interject, “I resent that”—to predictable laughter). He also listed a number of items that are worn at work, but that we do not typically call clothes. These include a police officer’s gun, radio, and handcuffs; a quarterback’s wristband containing a list of plays; a carpenter’s toolbelt; and a knife scabbard.
After Schnapper had spent some time rattling off examples of items that are not “clothes,” Justice Ginsburg asked, effectively, what that discussion had to do with the facts of this case. Referring to a picture of the items that the U.S. Steel workers put on and take off—including flame-retardant hoods, jackets, and pants—Justice Ginsburg said, “[T]hat looks like clothes to me.” Justices Kennedy and Alito quickly followed up with questions that suggested agreement with Justice Ginsburg’s statement, as did Justice Sotomayor later in the argument. Schnapper responded by saying that whether an item looks like clothes is not enough to come within the statutory “changing clothes” provision. Rather, he said, an item that is designed and worn to protect the wearer from a workplace hazard should not be considered “clothes” within the meaning of the statute.
The Justices appeared extremely skeptical of that proposed rule. Justice Alito noted that a principal purpose of wearing clothes has always been to provide protection—from the elements, even from thorns. And he suggested that a line that excluded clothing designed specifically to protect against workplace hazards—as opposed to the hazards of the sun or other elements that are present in and out of the workplace—would not be workable. Justice Sotomayor echoed that suggestion of unworkability, as did Justices Scalia, Ginsburg, and Kagan later in the argument.
Toward the end of Schnapper’s opening argument, Justice Breyer and Chief Justice Roberts noted that the “changing clothes” exclusion applies only if an employer and a union negotiate such an exclusion as part of a collective bargaining agreement. Each asked, effectively, why the Court should displace such an agreement. After all, when it gave up the right to recover overtime pay for the clothes-changing time, the union presumably obtained something for the workers it represented in return. Chief Justice Roberts (whose father worked as a plant manager for Bethlehem Steel) noted that the United Steelworkers of America, the union that negotiated the collective bargaining agreement under which the plaintiffs in this case worked, had not filed a brief in support of the plaintiffs.
For his part, DiNardo argued on behalf of U.S. Steel that “changing clothes” should be interpreted to encompass the entire process of putting on or taking off the “work outfit” that the employer and a union agreed was necessary for a worker to wear on the job. He contended that the Court should not focus on each individual item that a worker dons or doffs and ask whether it meets the definition of “clothes.” Instead, he argued, the Court should simply look to what the employer and union agree “will be part of the work outfit that will start the day,” whether or not we would ordinarily speak of the items in that outfit as clothes.
Justices Sotomayor, Ginsburg, Kagan, and Breyer each asked why the Court should adopt such a broad rule if the items worn by the employees here fit within ordinary understandings of “clothes.” Justice Scalia also expressed significant reservations with DiNardo’s proposed rule. Although that rule might well “eliminate all the problems” of application, he suggested, “it does not adhere to the words of the statute, which says ‘clothes.’” DiNardo seemed to have little success pushing back against this line of questioning.
Anthony Yang, Assistant to the Solicitor General, argued for the United States as amicus in support of U.S. Steel. He argued that “clothes” should have its ordinary meaning; that in ordinary parlance we distinguish clothes from “equipment”; and that an employer and a union should be permitted to count time as “changing clothes” even if, as an “ancillary” mater, the workers also don or doff equipment during that time. A number of the Justices pressed Yang on the question whether the government’s position was really any different than U.S. Steel’s. Yang responded that under the government’s position, unlike U.S. Steel’s, would not permit a collective bargaining agreement to exclude changing time if “the process is predominantly involving equipment and not clothes.” But Yang made clear throughout that this disagreement should not affect the Court’s decision here, because the items that workers at U.S. Steel put on and take off are clothes under any ordinary definition.
By the end of the argument, it was hard to find any Justices who could be safely counted as agreeing with the interpretation of “changing clothes” offered by the workers or the interpretation of that phrase offered by U.S. Steel. But it seemed extremely likely that the Justices would rule that, on the facts of this case, the workers at U.S. Steel were changing clothes when they donned and doffed their protective garments at the beginning and end of their shifts, and thus that the Seventh Circuit was correct to exclude that time from the FLSA’s overtime obligations.
CLICK HERE FOR FULL VERSION OF THIS STORY