The Meaning of 'Clothes'

Despite the age of this provision, the scope of ' 203(o) has remained an area of uncertainty, due in large part to the U.S. Department of Labor's (DOL) failure to take a consistent position. In the 1990s, the DOL issued a pair of opinion letters narrowly construing the term “clothes” to exclude “protective safety equipment typically worn in the meat packing industry, such as mesh aprons, plastic belly guards, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards, and weight belts.”

In 2002, the Bush administration reversed that Clinton-era guidance, opining that even cumbersome protective gear could be considered clothes. The DOL subsequently confirmed its broader reading of the statute in a 2007 opinion letter. However, in an unsolicited 2010 “Administrator's Interpretation,” the DOL changed position yet again, declaring that “the ' 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”

The Sandifer Case

The plaintiffs in Sandifer filed suit in the Northern District of Indiana arguing both that ' 203(o) should exclude from the definition of “clothes” any items intended to protect the worker from “workplace hazards,” and that the time spent walking from their locker rooms to their work stations should also be compensable time because it occurred after the start of the “continuous workday.” The district court partially agreed, holding that the plaintiffs' gear was clothing and excludable from compensable time pursuant to an agreement with the plaintiffs' union, but that their walking time might still be compensable, reasoning that changing clothes could still trigger the start of the compensable workday even though that activity itself was excludable under ' 203(o).

The Seventh Circuit affirmed in part, finding that most of plainiffs' gear was clothing and thus covered by ' 203(o), and that the few remaining items ' such as earplugs and goggles ' took so little time to put on that the time could be excluded as de minimis. The Appeals Court then went on to determine that only compensable activities can begin the continuous workday, and that plaintiffs therefore were not entitled to compensation until they reached their workstations and began working.

The Supreme Court subsequently granted certiorari. However, despite the fact that Seventh Circuit's “continuous workday” ruling potentially affects a broader range of employers, since it at least arguably applies to time excluded pursuant to the commonly used de minimis exception as well as ' 203(o), the Supreme Court only agreed to review the part of the Seventh Circuit's decision regarding the definition of “clothing.”

After the parties submitted their briefs to the Court, to most observers' surprise, the U.S. Solicitor General's Office filed an amicus brief that once again changed the Government's position on the scope of ' 203(o). Although the DOL had filed an amicus brief at the Seventh Circuit on behalf of the plaintiffs, the Solicitor's office came down on the side of U.S. Steel, arguing that the gear at issue in the case ' with a few minor exceptions ' should be considered clothing. The amicus brief mentioned the 2010 Administrators Interpretation only in a footnote, urging without explanation that the Court decline to follow it.

Oral Argument

At the Nov. 4, 2013 oral arguments in the case, two things seemed apparent: First, the Justices intend to create a broad rule rather than simply decide whether the specific items worn by the steelworkers in this case are “clothes.” Second, neither of the parties' proposals has impressed the Court. Even the liberal justices found significant problems with the Plaintiffs' proposal. For example, Justice Sotomayor took issue with the fact that Plaintiffs' approach would exclude “things that look like clothes,” and Justice Ginsburg similarly commented that a photograph of the gear in the record “look[ed] like clothes” to her. Justice Kagan asked why there should be a distinction between items required by an employer for sanitary reasons and items required in order to protect the employee.

Counsel for U.S. Steel argued that the Court should consider all items with the purpose of covering the body to be “clothes,” but also went further, arguing that in determining what activities fall under ' 203(o), the Court should look at the entirety of the block of time in which employees are “changing clothes” rather than focus on the individual items. This approach would sweep in not only actual changing time, but also the time it takes to open one's locker and close it back up again.

Justice Scalia bristled at this suggestion, stating that the approach advocated by the Government in its amicus brief was more “principled” because it adhered to the statutory term, “clothes.” Justice Breyer quipped that U.S. Steel's approach would create a category of “constructive clothes” that are not really clothes.

Although Justice Breyer's comment received laughs from the courtroom, it was not in fact very far from the position the U.S. Solicitor General's Office advocated. The Solicitor's Office, argued that most, but not all, of the gear worn by the plaintiffs should be considered “clothes.” With respect to non-clothing items like ear plugs, the Government urged the Court to ignore the Seventh Circuit's holding that the time spent putting on such gear at issue constituted de minimis time and to create a new category of items that are “ancillary” to clothes-changing instead. The Assistant Solicitor expressed concern that the Seventh Circuit's ruling disrupts current law limiting what can be considered de minimis time.

For example, some courts have held that the de minimis doctrine only applies to activities that are not regularly repeated. This may explain the administration's decision to abandon the 2010 Administrator's Interpretation ' the administration may have believed that its earlier hard line was likely to be rejected by the Court, and that a wholesale affirmance of the Seventh Circuit's decision would abrogate this line of cases. The administration also may have been concerned that rejection of the Administrator's Interpretation would have created unfavorable precedent with respect to the level of deference to be afforded to DOL interpretations, especially following the Supreme Court's 2012 decision in Christopher v. SmithKline Beecham Corp, which refused to give deference to a position advanced by the DOL in an amicus brief.

Surprisingly, the DOL's turnabouts on the scope of ' 203(o) received almost no discussion. Only Justice Kagan mentioned this history in passing, asking plaintiffs' counsel in an almost rhetorical manner why the DOL had never attempted notice-and-comment rulemaking on the issue.

In contrast, another aspect of ' 203(o) received unexpected attention. Plaintiffs' counsel theorized in response to a question from Justice Breyer that the AFL-CIO had joined plaintiffs' cause, rather than argue for a broader interpretation of ' 203(o) as a means to obtain greater freedom in bargaining, because courts had interpreted the “custom and practice” language of the provision too broadly, tying the hands of unions that failed to object immediately to non-payment. Counsel for U.S. Steel argued that plaintiff's characterization of the case law regarding this language was incorrect, but Justice Breyer nonetheless returned to that concept several times during the course of the arguments even though the “custom or practice” language was not directly at issue.

What's Next?

It its likely to be several months before the Court issues its decision, but the Court seemed most likely to adopt a middle-of-the-road rule that excludes some “accessory” items like glasses, but includes clothing that protects against workplace hazards. The Court's decision may also extend beyond the narrow definitional issue at hand and touch upon the “custom or practice” language of ' 203(o) or the de minimis doctrine. The latter issue in particular would significantly expand the potential application of the decision, as the de minimis doctrine is commonly relied upon by employers of all types.

Jessica Schauer Lieberman is an associate in the Boston office of Seyfarth Shaw LLP and a member of the firm's Labor and Employment Department.

A case pending before the Supreme Court is putting a new spin on the question, “What are you wearing?” In Sandifer v. U.S. Steel Corp., No. 12-417, a group of unionized steelworkers at a Gary, IN, factory claim that their employer violated the Fair Labor Standards Act by failing to pay them for time spent changing into flame-retardant suits, steel-toed boots, hardhats, gloves, and other protective items, even though their union has agreed to exclude that time from the compensable workday. The case turns on whether the protective gear the employees wear can be considered “clothes” under ' 203(o) of the FLSA.

Section 203(o)

Section 203(o) allows unions and employers to agree to exclude from the compensable workday time spent by employees “changing clothes or washing at the beginning or end of each workday.” If an employer (or the law) mandates use of protective gear for an employee's job and ' 203(o) does not apply, more often than not the employee must be paid for his or her “donning and doffing” time pursuant to a line of case dating back to the Supreme Court's 1956 decision in Steiner v. Mitchell. To take advantage of ' 203(o), either the terms of a collective bargaining agreement or a custom or practice under a collective bargaining agreement must provide for that time to be excluded. The section, which was passed in 1949 as part of a package of FLSA amendments known as the “Portal-to-Portal Act,” was intended to allow unions and employers to use the compensability of certain pre- and post-shift activities as a bargaining chip in their negotiations.

Despite the age of this provision, the scope of ' 203(o) has remained an area of uncertainty, due in large part to the U.S. Department of Labor's (DOL) failure to take a consistent position. In the 1990s, the DOL issued a pair of opinion letters narrowly construing the term “clothes” to exclude “protective safety equipment typically worn in the meat packing industry, such as mesh aprons, plastic belly guards, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards, and weight belts.”

In 2002, the Bush administration reversed that Clinton-era guidance, opining that even cumbersome protective gear could be considered clothes. The DOL subsequently confirmed its broader reading of the statute in a 2007 opinion letter. However, in an unsolicited 2010 “Administrator's Interpretation,” the DOL changed position yet again, declaring that “the ' 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”

The Sandifer Case

The plaintiffs in Sandifer filed suit in the Northern District of Indiana arguing both that ' 203(o) should exclude from the definition of “clothes” any items intended to protect the worker from “workplace hazards,” and that the time spent walking from their locker rooms to their work stations should also be compensable time because it occurred after the start of the “continuous workday.” The district court partially agreed, holding that the plaintiffs' gear was clothing and excludable from compensable time pursuant to an agreement with the plaintiffs' union, but that their walking time might still be compensable, reasoning that changing clothes could still trigger the start of the compensable workday even though that activity itself was excludable under ' 203(o).

The Seventh Circuit affirmed in part, finding that most of plainiffs' gear was clothing and thus covered by ' 203(o), and that the few remaining items ' such as earplugs and goggles ' took so little time to put on that the time could be excluded as de minimis. The Appeals Court then went on to determine that only compensable activities can begin the continuous workday, and that plaintiffs therefore were not entitled to compensation until they reached their workstations and began working.

The Supreme Court subsequently granted certiorari. However, despite the fact that Seventh Circuit's “continuous workday” ruling potentially affects a broader range of employers, since it at least arguably applies to time excluded pursuant to the commonly used de minimis exception as well as ' 203(o), the Supreme Court only agreed to review the part of the Seventh Circuit's decision regarding the definition of “clothing.”

After the parties submitted their briefs to the Court, to most observers' surprise, the U.S. Solicitor General's Office filed an amicus brief that once again changed the Government's position on the scope of ' 203(o). Although the DOL had filed an amicus brief at the Seventh Circuit on behalf of the plaintiffs, the Solicitor's office came down on the side of U.S. Steel, arguing that the gear at issue in the case ' with a few minor exceptions ' should be considered clothing. The amicus brief mentioned the 2010 Administrators Interpretation only in a footnote, urging without explanation that the Court decline to follow it.

Oral Argument

At the Nov. 4, 2013 oral arguments in the case, two things seemed apparent: First, the Justices intend to create a broad rule rather than simply decide whether the specific items worn by the steelworkers in this case are “clothes.” Second, neither of the parties' proposals has impressed the Court. Even the liberal justices found significant problems with the Plaintiffs' proposal. For example, Justice Sotomayor took issue with the fact that Plaintiffs' approach would exclude “things that look like clothes,” and Justice Ginsburg similarly commented that a photograph of the gear in the record “look[ed] like clothes” to her. Justice Kagan asked why there should be a distinction between items required by an employer for sanitary reasons and items required in order to protect the employee.

Counsel for U.S. Steel argued that the Court should consider all items with the purpose of covering the body to be “clothes,” but also went further, arguing that in determining what activities fall under ' 203(o), the Court should look at the entirety of the block of time in which employees are “changing clothes” rather than focus on the individual items. This approach would sweep in not only actual changing time, but also the time it takes to open one's locker and close it back up again.

Justice Scalia bristled at this suggestion, stating that the approach advocated by the Government in its amicus brief was more “principled” because it adhered to the statutory term, “clothes.” Justice Breyer quipped that U.S. Steel's approach would create a category of “constructive clothes” that are not really clothes.

Although Justice Breyer's comment received laughs from the courtroom, it was not in fact very far from the position the U.S. Solicitor General's Office advocated. The Solicitor's Office, argued that most, but not all, of the gear worn by the plaintiffs should be considered “clothes.” With respect to non-clothing items like ear plugs, the Government urged the Court to ignore the Seventh Circuit's holding that the time spent putting on such gear at issue constituted de minimis time and to create a new category of items that are “ancillary” to clothes-changing instead. The Assistant Solicitor expressed concern that the Seventh Circuit's ruling disrupts current law limiting what can be considered de minimis time.

For example, some courts have held that the de minimis doctrine only applies to activities that are not regularly repeated. This may explain the administration's decision to abandon the 2010 Administrator's Interpretation ' the administration may have believed that its earlier hard line was likely to be rejected by the Court, and that a wholesale affirmance of the Seventh Circuit's decision would abrogate this line of cases. The administration also may have been concerned that rejection of the Administrator's Interpretation would have created unfavorable precedent with respect to the level of deference to be afforded to DOL interpretations, especially following the Supreme Court's 2012 decision in Christopher v. SmithKline Beecham Corp, which refused to give deference to a position advanced by the DOL in an amicus brief.

Surprisingly, the DOL's turnabouts on the scope of ' 203(o) received almost no discussion. Only Justice Kagan mentioned this history in passing, asking plaintiffs' counsel in an almost rhetorical manner why the DOL had never attempted notice-and-comment rulemaking on the issue.

In contrast, another aspect of ' 203(o) received unexpected attention. Plaintiffs' counsel theorized in response to a question from Justice Breyer that the AFL-CIO had joined plaintiffs' cause, rather than argue for a broader interpretation of ' 203(o) as a means to obtain greater freedom in bargaining, because courts had interpreted the “custom and practice” language of the provision too broadly, tying the hands of unions that failed to object immediately to non-payment. Counsel for U.S. Steel argued that plaintiff's characterization of the case law regarding this language was incorrect, but Justice Breyer nonetheless returned to that concept several times during the course of the arguments even though the “custom or practice” language was not directly at issue.

What's Next?

It its likely to be several months before the Court issues its decision, but the Court seemed most likely to adopt a middle-of-the-road rule that excludes some “accessory” items like glasses, but includes clothing that protects against workplace hazards. The Court's decision may also extend beyond the narrow definitional issue at hand and touch upon the “custom or practice” language of ' 203(o) or the de minimis doctrine. The latter issue in particular would significantly expand the potential application of the decision, as the de minimis doctrine is commonly relied upon by employers of all types.

Jessica Schauer Lieberman is an associate in the Boston office of Seyfarth Shaw LLP and a member of the firm's Labor and Employment Department.