Supreme Court Asked to Define “Clothes”

November 6, 2013

What are “clothes”? Most school children could probably answer that question in a way likely to satisfy the asker. But a case currently before the U.S. Supreme Court demonstrates that the question is far from elementary.

The Fair Labor Standards Act (“FLSA”) requiries that workers be paid at least the federal minimum wage for all hours worked, and overtime (time and a half) for hours worked over 40 hours per week. But the statute does not define “work,” leaving courts to determine what activities an employee is or is not entitled to be compensated for. The FLSA does provide, however, that employees need not be compensated for time spent “changing clothes . . . at the beginning or end of each workday.”

As applied to most workers, the statutory exclusion of time spent “changing clothes” is fairly straightforward. But last year a group of Indiana steelworkers filed suit against their employer, United States Steel Corp., arguing that what they are required to wear to work is not mere clothing, but safety equipment. Therefore, they sought to be paid for the time spent changing into and out of their work clothes, which include flame-retardant pants and jackets, work gloves, steel-toed boots, hard hats, safety glasses, ear plugs, and a special hood (called a “snood”) that covers the worker’s head, chin and neck.

The U.S. Court of Appeals for the 7th Circuit ruled against the steelworkers, holding that while their uniforms may be personal protective equipment, they were nevertheless clothing as well. The U.S. Supreme Court agreed to hear the case, and oral arguments were held on Monday (November 4).

The New York Times and The Atlantic have reported about what were by all accounts remarkable oral arguments in Sandifer v. U.S. Steel Corp. In debating the meaning of clothes, the steelworkers’ attorney argued that many things “worn” by an individual do not constitute clothes; an example he gave was a toupee, to which Justice Scalia replied “I resent that.” Justice Alito asked whether a primary purpose of all clothing wasn’t protection against the elements and hazards, and Justice Sotomayor, while conceding that not everything that covers the body (for example, makeup and jewelry) is clothing, suggested that the court “apply a little bit of common sense to life” and hold that “if it looks like clothes, it is clothes.”

Although the Justices did not seem overwhelmed by the steelworkers’ arguments, neither were they willing to entirely accept the employer’s arguments either. They rejected U.S. Steel’s argument that essentially anything an employee is required to wear for work is “clothing” such that the employee need not be paid for the time spent changing into and out of their uniform. Justice Sotomayor pointed out that such an argument would wrongly encompass “somebody spending an hour putting on a suit of armor if he’s going to be a jouster,” as well as “the space people who put on that complicated white suit.” Under the FLSA, the time spent putting on and taking off such equipment should be compensable.

Despite the at-times humorous references to toupees, knife scabbards, jousters, hunters, and “space people,” the questions and issues before the Court illustrate how complex this issue is. Until the Supreme Court issues its opinion and/or the Department of Labor issues regulations more clearly delineating when employees are entitled to be paid for donning work equipment, the law will remain unclear. If you believe your employer is violating your rights under the FLSA — whether by refusing to compensate you for significant time spent putting on or taking off protective equipment, or by failing to properly pay minimum wage or overtime — the lawyers of Parks, Chesin & Walbert are available to discuss these issues with you.

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