February 19, 2013
Today the Supreme Court granted certiorari in one case of interest to the business community:
Fair Labor Standards Act—“Changing Clothes”
Section 203(o) of the Fair Labor Standards Act exempts employers from having to compensate employees for off-the-clock “time spent in changing clothes . . . at the beginning or end of each workday” if a collective-bargaining agreement so provides. 29 U.S.C. § 203(o). Today, the Supreme Court granted certiorari in Sandifer v. United States Steel Corp., No. 12-417, to decide whether donning and doffing safety gear constitutes “changing clothes” within the meaning of section 203(o).
In Sandifer, the plaintiff had brought a collective action under the FLSA on behalf of steel-mill employees, alleging that their employer had improperly failed to compensate them for time spent before and after each shift donning and doffing safety equipment, including fire-retardant jacket and pants, steel-toed boots, goggles, ear plugs, hard hats, a flame-retardant head covering (a “snood”), and a flame-retardant “wristlet” (which covers the forearm). The millworkers’ collective-bargaining agreement did not require compensation for time spent changing clothes. The district court granted the employer’s motion for summary judgment, holding that the protective equipment constitutes “clothes” under section 203(o), and thus the time was not compensable.
On appeal, the Seventh Circuit affirmed the district court’s decision. Although the Seventh Circuit held that some of the protective items—the goggles and ear plugs—were not “clothes” under section 203(o), the court held that the time spent donning and doffing those items was de minimis and thus not compensable. Other circuits have adopted varying tests for determining whether safety equipment constitutes “clothes” under section 203(o). The Seventh Circuit also held that, while donning and doffing safety equipment may constitute a “principal activity” under the FLSA, it is noncompensable under section 203(o).
The Supreme Court limited its grant of certiorari to the first question presented, addressing whether donning and doffing safety gear constitutes “changing clothes” under section 203(o). The Supreme Court declined to extend certiorari to the petitioner’s challenge to the Seventh Circuit’s de minimis and principal-activity holdings.
Sandifer is of interest to all employers whose employees are covered by the FLSA, and especially to those who have entered into collective-bargaining agreements that do not require compensation for time spent donning and doffing safety equipment or clothing. The Supreme Court’s decision will clarify under what circumstances it is permissible to exclude such time, and whether time spent donning and doffing particular types of safety equipment must be compensated.
Absent extensions, amicus briefs in support of the petitioner will be due on April 12, 2013, and amicus briefs in support of the respondent will be due on May 13, 2013. Any questions about this case should be directed to Andrew S. Rosenman (+1 312 701 8744) in our Chicago office or Kevin S. Ranlett (+1 202 263 3217) in our Washington office.
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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at firstname.lastname@example.org or +1 202 263 3324).
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