Sandifer v. United States Steel Corp.
Should workers be compensated for time spent putting on and taking off safety gear, when the applicable collective bargaining agreement excludes time spent “changing clothes” from the compensable workday and that exclusion is permitted by section 203(o) of the Fair Labor Standards Act?
Petitioner Clifton Sandifer and a group of former and current steelworkers sued Respondent U.S. Steel for violating the Fair Labor Standards Act ("FLSA"). The steelworkers are represented by United Steelworkers, a labor union which has had a collective bargaining agreement in place with U.S. Steel since 1947. These collective bargaining agreements have stipulated that workers will not be paid for the time it takes to put on their safety gear before they start working or for the time it takes to remove their safety gear after they stop working. FLSA requires employers to pay workers for these activities, but section 203(o) allows exceptions to payment for time spent “changing clothes” when labor unions and management specify otherwise in collective bargaining agreements. The steelworkers in this case argue that putting on safety gear is not encompassed by the phrase “changing clothes,” which they contend only refers to changing from street clothes into work clothes. U.S. Steel argues that safety gear is included within that language and has been appropriately bargained over with the labor union. The decision in this case will clarify what activities are covered by section 203(o) and in doing so will provide clarity to management and labor unions when they collectively bargain over these issues. Specifically, the outcome of the case will determine whether unions may bargain away a statutory right of employees to be paid for time spent putting on and removing required safety gear for work.
Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Donning and doffing safety gear (including protective clothing) required by the employer is a principal activity when it is an integral and indispensable part of the activities for which the worker is employed. Such requirements are common in manufacturing firms. However, under section 203(o) of the Act an employer need not compensate a worker for time spent in "changing clothes" (even if it is a principal activity) if that time is expressly excluded from compensable time under a bona fide collective bargaining agreement applicable to that worker.
The interrelated questions presented are:
- What constitutes "changing clothes" within the meaning of section 203(o)?
- If a worker's actions are a principal activity but fall within the scope of the section 203(o) exemption, do those actions nonetheless commence the period of time during which (aside from the clothes-changing time) the worker must be compensated?
- If a worker engages in a principal activity which is not exempted by section 203(o), but which involves only a de minimis amount of time, does the activity nonetheless commence the period of time during which the worker must be compensated?
The steelworkers involved in this collective action lawsuit are approximately 800 current or former employees of United States Steel Corporation (“U.S. Steel”), primarily from the company’s Gary, Indiana plant. See Brief for Petitioner, Sandifer at 4, n. 3. These workers (“steelworkers”) are among many employees at U.S. Steel plants who are required—both by the company and by the Occupational Safety and Health Act ("OSHA")—to wear safety gear while they work. See Sandifer v. U.S. Steel 2009 WL 3430222 (N.D. Ind.) at 13. The process of making steel often involves dangerous work and for some positions, personal protection equipment (PPE) is necessary to protect these workers from injury. Id. at 14. U.S. Steel provides the PPE required for each employee, who must arrive early to each shift to put on their gear and travel to their worksite in time for their shift to begin. Id. at 2. The time spent putting on the equipment and traveling to their work site can be substantial for some employees, due both to the safety gear required and to the immense size of the plants, which are so large that some workers travel from the locker room to their work station by bus. See Brief for Petitioner at 6.
United Steelworkers (“USW”) is the union that represents all the workers involved in this lawsuit and has a collective bargaining agreement with U.S. Steel governing the terms and conditions of work for these employees, though USW is not participating in this lawsuit. See Brief for Respondent, United States Steel Corporation at 9–10, 13. Since 1947, the contracts between U.S. Steel and United Steelworkers have determined that the company does not need to pay workers for the time they spend putting on safety gear, taking it off, and traveling between their work sites and locker rooms. See Sandifer v. U.S. Steel Corp., 678 F.3d 590, 591–92 (7th Cir. 2012). This group of steelworkers joined together in a collective action lawsuit and argued that the statutory language of the Fair Labor Standards Act ("FLSA") necessitates that they be paid for their time putting on safety gear—as distinct from clothing—and that the union cannot bargain away their statutory rights. See Brief for Petitioner at 4. This group of steelworkers sought backpay for time spent putting on safety equipment and traveling between the locker room and their work stations. See id. at 11. The United States District Court for the Northern District of Indiana granted U.S. Steel’s motion for summary judgment regarding the issue of whether workers should be paid for the time spent putting on and taking off the safety gear, but denied it regarding the time spent traveling between the locker room and worksite. See Sandifer v. U.S. Steel 2009 WL 3430222 (N.D. Ind.) at 19. Both parties appealed and the Seventh Circuit Court of Appeals granted U.S. Steel’s motions for summary judgment on both counts. See Sandifer v. U.S. Steel Corp., 678 F.3d 590, 595–96 (7th Cir. 2012). The steelworkers appealed and were granted certiorari on the issue of clothing only.
The steelworkers argue that a reasonable interpretation of the statutory language and history of the relevant section of the FLSA dictate paying workers for time spent putting on safety gear before a shift starts and removing it afterward. They argue that excluding safety gear from the definition of “clothes” encompassed in section 203(o) would provide a clear rule that would be easily enforceable because it comports with already-existing distinctions drawn by OSHA on this issue. See Brief for Petitioners at 60. In response, U.S. Steel contends that excluding protective gear from the definition of “clothes” found in section 203(o) would make the statute more confusing and more difficult to enforce. See Brief for Respondent at 59.
Many of the amicus briefs reflect the concern raised by U.S. Steel that excluding protective gear from the FLSA definition of “clothes” in section 203(o) would make the meaning of the statute confusing and enforcement of its terms unpredictable. Writing in support of U.S. Steel, the Grocery Manufacturers Association (“Grocery Manufacturers”) predicts that excluding protective gear in this case would create an unworkable legal standard requiring courts to ask a number of detailed factual questions about particular pieces of clothing. See Brief of Amicus Curiae Grocery Manufacturers Association in Support of Respondent at 33–34. Similarly, the United States argues that the definition of “clothing” put forward by the steelworkers is too vague to provide certainty to employers or employees. See Brief of Amicus Curiae United States in Support of Respondent at 19. On the other hand, a group of labor unions argue that the statutory history of the FLSA amendment necessitates a reading of the statute that excludes protective gear from the definition of “clothing.” See Brief of Amici Curiae the American Federation of Labor and Congress of Industrial Organizations and the United Food and Commercial Workers International Union in Support of Petitioners at 15–16.
Accordingly, amici suggest that resolution in favor of the steelworkers would produce uncertainties that would result in increased litigation. A group of meat industry organizations argue that deference to the collective bargaining agreement would foreclose much future litigation by affirming the current practice surrounding negotiations on this issue. See Brief of Amici Curiae American Meat Institute, North American Meat Association, National Turkey Federation, National Chicken Counsel in Support of Respondent at 33–34. The Grocery Manufacturers additionally argue that the purpose of section 203(o) is in part to prevent litigation on this topic, which would be best achieved by enforcing the collective bargaining agreement. See Brief of Grocery Manufacturers Association at 24.
Yet the steelworkers argue that the most disruptive ruling would be one focused on whether the provision was an “exception” or an “exemption,” which would have reverberations throughout the United States Code, because those terms are used so frequently. See Brief for Petitioners at 18.
Amici in support of U.S. Steel additionally argue that excluding protective gear from “clothing” would have a disruptive impact on labor agreements already in place and on negotiating processes in the future. The Grocery Manufacturers argue that labor unions are uniquely qualified to bargain over wage and hour issues and that those agreements ought to be upheld. See Brief of Grocery Manufacturers Association at 32. The Chamber of Commerce similarly argues that section 203(o) empowers employees to collectively bargain over their wages and working conditions and that those negotiations are well suited to produce a mutually beneficial resolution of any ambiguities in the statute. See Brief of Amicus Curiae Chamber of Commerce of the United States of America in Support of Respondent at 8–13.
Finally, amici United States and the Grocery Manufacturers argue that the steelworkers in this case have been working under a collective bargaining agreement that presumably granted them some benefit in exchange for that concession so that they have already received the benefit of their bargain and that upending the agreement would do harm to the collective bargaining process. See Brief of United States at 17–18; Brief of Grocery Manufacturers Association at 24.
This case turns on the Court’s interpretation of the language “changing clothes” in section 203(o). U.S. Steel argues that “changing clothes” refers to “the activity of donning and doffing the entire outfit worn by an employee to be ready to work.” See Brief for Respondent at 28.Sandifer, however, contends that “changing” encompasses the substitution of clothes for other clothes, but that the meaning of “clothes” in section 203(o) is ambiguous. See Brief for Petitioner at 19, 22. Sandifer argues that “clothes” should not include items designed to protect against workplace hazards. See id. at 43.
DEFINITION OF “CHANGING CLOTHES”
U.S. Steel asserts that the definition of “clothes” in 1949, when Congress passed section 203(o), and the present has not changed and supports the definition of “clothes” as articles that cover the human body. See Brief for Respondent at 26. In opposition, Sandifer cites divergent dictionary definitions of “clothes” and argues that the term “clothes” in section 203(o) is ambiguous. See Brief for Petitionerat 19–22. Although some lower courts have followed U.S. Steel’s definition of clothes, Sandifer contends that this definition is overbroad. See id.at 28. Sandifer draws support from the Seventh Circuit’s opinion where the Court acknowledged that not everything covering the human body is considered clothing. See id.at 30. Sandifer, however, rejects the Seventh Circuit’s standard, which asks whether an English speaker would call what a person is wearing “clothes.” See id.at 34. Sandifer argues that this standard does not take into account an English speaker’s lack of knowledge of the function of the clothes; for example, one would not usually call a bulletproof vest “clothes.” See id.at 36. Although Sandifer argues against U.S. Steel’s definition of “clothes,” Sandifer does not offer his own definition.
Sandifer contends that “changing” in section 203(o) refers to the substitution of clothes for other clothes. See Brief for Petitioner at 22. Therefore, if workers put on work related clothing over their normal clothing, this does not constitute changing clothes within the meaning of section 203(o). See id.In opposition, U.S. Steel contends that “changing” means to alter or render different. See Brief for Respondent at 26. U.S. Steel argues that “changing” and “clothes” should not be read in isolation, but rather in their broader statutory and historical context. See id. at 24. Thus, U.S. Steel contends that “changing clothes” in section 203(o) refers to the donning and doffing of the entire outfit an employee wears in order to be ready for work. See id.
U.S. Steel draws further support from the purpose and legislative history of section 203(o). See Brief for Respondent at 31. U.S. Steel argues that Congress passed the Portal to Portal Act ("PPA")—enacted in response to the FLSA’s overly broad definition of “work”—to provide employers with the option to exclude the time employees spend getting ready for work from compensable work time. See id. at 3, 31. However, after the passage of the PPA, the Department of Labor issued a guidance letter asserting that the changing of some outfits might require compensation. See id.at 32. U.S. Steel contends that Congress enacted section 203(o) in response to the Department of Labor’s guidance, illustrating that Congress meant for section 203(o) to empower employers and unions with the ability to bargain—in all cases—over whether changing clothes will be excluded from compensable time. See id. U.S. Steel also contends that their definition of “changing clothes” (i.e. the donning and doffing of all garments worn by an employee in order to be ready to work) gives a clear, easily administrable rule that fulfills Congress’s aspiration to defer to collective bargaining. See id. at 37–40.
U.S. Steel argues that regardless of the definition of “clothes,” the safety equipment at issue in this case falls under any definition of “clothes” since they cover the human body and are materially indistinguishable from normal, daily clothes. See Brief for Respondent at 65–68.
PERSONAL PROTECTIVE EQUIPMENT AND “CLOTHES” IN SECTION 203(o)
Although Sandifer does not advocate for an exact definition of “clothes,” Sandifer does argue that “clothes” in section 203(o) should be interpreted to not include items that are specifically designed and used to protect against workplace hazards. See Brief for Petitioner at 22. Sandifer asserts that this decision would provide a clear rule for future cases by using distinctions already articulated by OSHA regulations. See id.at 57–60. OSHA spells out the most common types of workplace hazards that employers must protect workers from. See id. at 60. It also provides that employers must pay for personal protective equipment, but not ordinary clothing. See id.Therefore, if the disputed clothing is not designed and used to protect against workplace hazards, it would not fall within the clothes contemplated by section 203(o). See id.
U.S. Steel, however, contends the workplace hazards spelled out in OSHA and the equipment related to these dangers constitute the precise type of clothing that Congress meant for employers and unions to bargain over. See Brief for Respondent at 51–52. Furthermore, U.S. Steel asserts that Sandifer’s rule would be unworkable because under Sandifer’s definition, a worker must first remove at least one piece of clothing to constitute “changing clothes,” thus excluding clothes that are put on over daily clothes. See id. at 55–58. U.S. Steel also argues that due to Sandifer’s lack of a definition for “clothes,” courts would still have to engage in the question of whether an English speaker would consider the items in dispute “clothes.” See id.
Sandifer contends that at the time Congress passed section 203(o), Congress likely envisioned ordinary apparel when they thought of “clothes” due to the relative lack of personal safety equipment. See Brief for Petitionerat 44. In addition, Sandifer argues, people usually call protective apparel “clothing” rather than “clothes.” See id.at 48–50. Therefore, in Sandifer’s view, since Congress used the language “clothes” instead of “clothing,” Congress meant everyday clothes, not protective apparel. See id.at 49.
In opposition, U.S. Steel argues that Congress specifically meant for section 203(o) to cover special clothes, such as protective clothing, as demonstrated by the legislative history leading up to the passage of section 203(o). See Brief for Respondent at 40. U.S. Steel argues that there is no reason that Congress would intend to give employers and unions the power to bargain over the compensability of only some parts of a work outfit. See id. at 32. Additionally, since unions and employers possess the best position to understand the intricacies of their own particular circumstances, restricting the clothes that the parties may bargain over undermine the acknowledgment of the bargaining parties’ special knowledge. See id. at 33. U.S. Steel further argues that since the Portal to Portal Act already precluded compensation for non-integral or dispensable activities to an employee’s productive work, in order for 203(o) to have any affect it must apply to the donning and doffing of clothing vital to an employee’s productive work—including personal protective equipment. See id. at 34.
In interpreting section 203(o), Sandifer asserts that section 203(o) is an exemption, not exclusion, and as an exemption the Court should construe it narrowly. See Brief for Petitionerat 53–54. On the other hand, U.S. Steel argues that section 203(o) is a definitional provision, not an exemption. See Brief for Respondent at 53. Thus, as a definitional provision, section 203(o) should not receive the narrow construction that an exemption would receive. See id. at 53.
This case will clarify what activities and items are included in the FLSA section 203(o) provision that allows unions to bargain over whether management will pay for time spent “changing clothes.” Resolution of the case will impact current collective bargaining agreements and provide guidance to management and labor unions in future negotiations.
- Liberty Cassidy Whitmore: The Meaning of ‘Clothes’ to be Decided by the Supreme Court (Feb. 28, 2013)
- Reuters, Lawrence Hurley: Supreme Court to Hear Workers’ Claims vs U.S. Steel (Feb. 13, 2013)