Federalist Society Teleforum Conference Call
Tammy D. McCutchen
Join us for a Courthouse Steps Teleforum after oral arguments before the Supreme Court in Sandifer v. Unites States Steel Corp. on the issue of the meaning of the term “clothes” in Section 3(o) of the Fair Labor Standards Act. The impact of the Court’s decision may have a substantial impact on employers, especially manufacturers.
Under the FLSA, generally, employees must be paid for donning and doffing protective clothing if they are required by law or the employer to change into their gear at the work site. However, Section 3(o) provides an exception to the rule for a unionized workforce by allowing employers and unions to bargain over whether, and under what terms, employees will be paid for “time spent in changing clothes or washing at the beginning or end of each workday.”
Since 1947, the collective bargaining agreement between U.S. Steel and the United Steelworkers provided that the company would not compensate employees for “time spent in preparatory and closing activities.” Some of the steelworkers sued alleging that U.S. Steel violated the FLSA by failing to pay employees for donning and doffing flame-retardant pants and jackets, work gloves, steel-toed boots, a hard hat, safety glasses, ear plugs, and a hood that covers the top of the head, the chin, and the neck. The question before the Court is whether these items are included within the scope of the term “clothes” in Section 3(o). If the Court answers in the negative, manufacturers around the country could be liable for millions, and more millions in back wages, for failing to pay employees for donning and doffing as bargained for with their unions.
Also interesting to watch for in this case is the Court’s reaction to U.S. Department of Labor’s opinion letters on this issue. In 2002 and 2007, DOL issued an opinion letter stating that such gear is covered under Section 3(o), but DOL reversed that opinion in 2010. However, DOL reversed again – filing an amicus brief in favor of U.S. Steel and requesting that the Court not defer to the 2010 opinion.
Unions are also on both sides of this issue. The AFL-CIO filed amicus on behalf of the employees, but the United Steelworkers has not weighed in at any level in this litigation. Rather, during contract negotiations that occurred in 2008, after this lawsuit was filed, the United Steelworkers agreed to stronger and more specific language for the CBA confirming that employees would not be compensated for time spent “donning and doffing protective clothing.”
- Hon. Tammy D. McCutchen, former Administrator, Wage and Hour Division, United States Department of Labor and Shareholder, Littler Mendelson, P.C.
Call begins at 4:00 p.m. Eastern Time.
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