Louis Santiago is a Partner in our Portland office
For minimum wage and over-time purposes, Section 203(o) of the Fair Labor Standards Act (FLSA) states that "hours worked" does not include time spent "changing clothes" if that time is excluded from working time by the express terms of or by custom or practice under a collective-bargaining agreement. So, under FLSA Section 203(o) does the term "changing clothes" include time spent putting on and taking off safety equipment?
In 2003 the U.S. Court of Appeals for the Ninth Circuit (which includes the States of OR, WA, ID, MT, CA, NV, AZ, AK, and HI) ruled that required safety equipment is distinct from ordinary work clothes and so putting on and taking off required safety equipment does not fall within the Section 203(o) pay exclusion for "changing clothes."
However, last year the U.S. Court of Appeals for the Seventh Circuit (which includes the States of IL, IN and WI) held in an FLSA collective action filed by approximately 800 current and former U.S. Steel employees – Clifton Sandifer v. United States Steel Corporation – that the company was not compelled to pay union represented steel workers for the time they spent changing into and out of safety equipment. The safety equipment consisted of flame-retardant pants and jacket, work gloves, metatarsal boots (work boots containing steel or other strong material to protect the toes and instep), a hard hat, safety glasses, ear plugs, and a "snood" (a hood that covers the top of the head, the chin, and the neck). The Seventh Circuit stated that "putting on safety glasses and the hard hat and putting in the ear plugs involves a matter of seconds and hence not compensable, because de minimis." And with regard to the remaining safety equipment, the Seventh Circuit reasoned that "[g]iven the subject matter of the Fair Labor Standards Act it would be beyond odd to say that the word 'clothes' in section 203(o) excludes work clothes, especially since the section is about changing into and out of clothes at the beginning and end of the workday."
On February 19, 2013 the Supreme Court of the United States agreed to resolve this split in the Circuit Courts. The question presented to SCOTUS is limited to the following: What constitutes "changing clothes" within the meaning of Section 203(o) of the FLSA?
For more information: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-417.htm and http://www.ca7.uscourts.gov/tmp/Q314MKJB.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
