Changing Clothes, from the Steel Mills to the Ski Slopes

Published January 27th, 2014 -  - 01.27.148


Earlier today, the Supreme Court decided Sandifer v. United States Steel Corp., 571 U.S. ___ (2014), a case about whether employers are required to pay employees for the time they spend changing into and out of protective gear (and a case for which we wrote an Explainer back in October). With a few hints that he wished he were skiing, Justice Scalia wrote for a unanimous Court that an employer can collectively bargain with employees to make the time they spend changing noncompensable.

The Fair Labor Standards Act (FLSA) sets minimum wages and maximum hours for the time a covered employee spends working. As with any minimum wage law, an employer cannot contract with a covered employee to pay anything else than what the statute requires. “Work” time is not always clear, however, especially the time an employee spends changing into a uniform on arrival or taking off protective gear before going home. In 1949, Congress amended FLSA by adding a section codified in 29 U.S.C. § 203(o), which provides that employees and employers can collectively bargain over whether the employer must pay workers for the time they spend “changing clothes or washing at the beginning or end of each workday.”

At issue before the Court was what counts as “changing clothes”: if an employer requires employees to wear steel-toed boots, a flame-retardant jacket, a respirator, and other protective items, must the employer pay a minimum wage for the time employees spend putting these on, or does § 203(o) permit employers and employees to collectively bargain over compensation? Employees of the U.S. Steel Corporation, whose union bargained with the company to make time spent “changing clothes” noncompensable, argued that FLSA required backpay for the time they had spent putting on these various pieces of protective gear, as “clothes” typically refers to items that provide “decency and comfort,” not protection. U.S. Steel disagreed, arguing that “clothes” refers to the entire outfit that one puts on to be ready for work, including earplugs and safety glasses.

Justice Scalia, writing for a unanimous Court, took an intermediate position but ultimately agreed with U.S. Steel. The Court noted that typical items of clothes often provide both comfort and protection from the cold or the sun, so the employees’ distinction between “comfort” and “protection” was arbitrary. But the Court also disagreed with U.S. Steel’s definition of “clothes,” which would encompass respirators and safety glasses, as overbroad. The Court decided that in the context of FLSA, “clothes” should be understood in its “ordinary, contemporary, common meaning,” including jackets and “snoods” (a hood Justice Scalia noted a person “on the ski slopes” might call a “balaclava”) but not respirators or earplugs.

While the Court thus determined that respirators are not “clothes” under § 203(o), the Court did not hold that FLSA required U.S. Steel to pay its employees for the time they spent donning and doffing such nonclothing protective gear. Concerned with the prospect of converting “federal judges into time-study professionals,” Justice Scalia reasoned that § 203(o) covers all periods in which employees spend the majority of time changing “clothes,” without needing to subtract for each minute spent putting on other gear. Keeping his mind on the slopes, Justice Scalia noted that “[j]ust 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.”

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