Monday, January 27, 2014

A Clothes Question at the Supreme Court

Sometimes I wonder if the justices at the Supreme Court throw their hands up in frustration at some of the silly issues they have to decide. Such as in this case, when some of the arguably brightest people in the United States are asked to define the term "changing clothes".

In this Fair Labor Standards Act case, the stakes were reasonably high for the employer-compensation paid to employees over small increments of time that the employer, US Steel, quite reasonably thought it had dealt with through a collective-bargaining agreement. The FLSA requires employers to compensate employees for time spent putting on and taking off ("donning and doffing" in the FLSA vernacular) clothing or uniform items that are directly related to the specific work an employee is to perform. The FLSA contains a specific provision that allows employers and unions to exclude time spent changing clothes or washing up (which normally would be time for which the employee must be paid) from compensable time, presumably in exchange for a higher hourly rate of pay, or some other employee benefit.

Notwithstanding this provision, and the fact that US Steel had negotiated such a time exclusion into its collective-bargaining agreements, a group of steelworkers argued that putting on protective clothing required by their job, including shoes, helmets, eyeglasses, earplugs, work gloves, and a respirator, were not actually "clothes" within the meaning of the statute, but rather protective devices. Under the employees' argument, the time spent putting on protective devices, as opposed to "clothes",  is not included in the collective-bargaining agreement exclusion, and therefore is compensable time.

This sounds like a somewhat fatuous argument, and I think many of the justices agreed, although they did not say so precisely. What the Court did was unanimously find for the employer, determining that the time spent putting on protective clothing is properly excluded from paid time under the terms of the appropriate CBA provision. The court noted, however, that glasses, earplugs, and respirators-items that are not typically considered articles of clothing-were not covered under its definition, and time spent putting on these items would normally be compensable even in the presence of a collective-bargaining agreement exclusion. The court then determined that since the donning and doffing of these items was a negligible part of the total time putting on the protective clothing, the overall activity would be considered "changing clothes" within the meaning of the exclusion.

Because employers have generally become more compliant with their timekeeping obligations under the FLSA, lawyers for employees have increasingly shifted focus to find marginal activities that might not be compensated by the employer. These types of activities are typically found at the start or end of the workday, and have been the subject of a great deal of litigation, especially in states with highly restrictive FLSA requirements for employers. The court's definition of "changing clothes" appears to be a common sense one, but it may have some significant ramifications for employers in operations where putting on uniforms, or protective gear is an important part of the workday.