On May 8, 2012, the U.S. Court of Appeals for the Seventh Circuit held that steelworkers employed by the United States Steel Corporation were not entitled to compensation for time spent in putting on or taking off their work clothes or for time spent walking between their locker room and work stations under the Fair Labor Standards Act (FLSA). Clifton Sandifer et al. v. U.S. Steel Corp., __ F.3d __, 2012 WL 1592543 (7th Cir. May 8, 2012).

In reaching this conclusion, the Seventh Circuit considered that the collective bargaining agreement between it and the union covering the plaintiffs did not require compensation for clothes changing time — an agreement permitted by section 203(o) of the FLSA. The court determined that plaintiffs work clothing were “clothes” within the meaning of the FLSA, and then concluded that an activity that is unpaid (here, changing into work clothes) cannot, as a matter of law, be a “principal activity” that starts or ends the workday. As a consequence, time spent by the plaintiffs traveling from the locker room to their workstations was not compensable either. In its decision, the court also considered whether to afford deference to the opinions and arguments of the Department of Labor (DOL or Department) as amicus curiae in favor of the plaintiffs, and decided that in this case, the Department’s opinions were political in nature and not helpful, so it afforded them little weight.

A more in-depth analysis of the court’s opinion follows.

Changing Clothes as a Compensable Activity Under the FLSA

The FLSA requires that workers be paid at least minimum wage for all hours “worked.” To aid in the definition of “work,” Congress passed the Portal-to-Portal Act, 29 U.S.C. §§ 251 et seq., which addressed the circumstances under which “walking, riding, or traveling” would be compensable, and added section 203(o) to the FLSA. That section excludes from the time during which an employee is entitled to be compensated at the minimum hourly wage “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time . . . by the express terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203(o).

While the parties in this case agreed that the terms of their collective bargaining agreement provided that employees would not be compensated for time spent changing clothes, the plaintiff contended that the FLSA required that they be compensated anyway because the work clothes into which they changed were not “clothes” within the meaning of the FLSA, but rather safety equipment. The work clothes consisted of flame-retardant pants and jacket, work gloves, work boots containing metal to protect the toes and instep, a hard hat, safety glasses, ear plugs, and a hood that covers the top of the head, the chin, and the neck.

The circuit court disregarded time spent by the plaintiffs donning the hard hat, safety glasses, and ear plugs as de minimus, and thus not compensable under the FLSA. The court then found that the remaining work clothes items were not excluded from the FLSA’s definition of clothes simply because they also served a protective function, reasoning that it would be “absurd” and “beyond odd” to exclude this type of work clothes from the definition of “clothes” in a statute about workers changing clothes.

Because it deemed the plaintiffs’ work clothes to be “clothes” within the meaning of section 203(o), and because the parties were subject to a collective bargaining agreement that provided no compensation for the employees to change these clothes, the court held that such time spent changing was not compensable under the FLSA.

Travel Time Before and After Changing Clothes as a Compensable Activity Under the FLSA

The employees argued that even if the clothes changing time was not compensable, that the time spent walking between the locker room where they changed and their work station at the beginning and end of the day should be compensable under the FLSA.

The Portal-to-Portal Act, mentioned above, exempts from the minimum wage and overtime provisions of the FLSA “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform.” 29 U.S.C. § 254(a). However, if an activity such as changing clothes is deemed a “principal activity,” then the travel time between that principal activity and the place of performing the main work activity of the employee is not exempted under the Portal-to-Portal Act (i.e., would be compensable time), as the employee is traveling between principal activities as opposed to traveling to or from a principal activity. IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005).

The court held that here, the employer and the plaintiffs had agreed — as the FLSA provides that they could do — to classify time spent changing into work clothes as nonworking time. The parties had thereby also agreed that the plaintiffs’ workday would not start when the workers changed their clothes; rather, it would start when they arrived at their work site. The court reasoned, “[i] f clothes changing time is lawfully not compensated, we can’t see how it could be thought a principal employment activity, and so section 254(a) exempts the travel time in this case.”

In so holding, the court recognized that it was creating a split with the Sixth Circuit Court of Appeals, which decided in Franklin v. Kellogg Co., 619 F.3d 604, 618-19 (6th Cir. 2010) that unpaid changing time (pursuant to a collective bargaining agreement) was a principal activity simply because it was required by the employer — a conclusion the court deemed “clearly wrong.”

Consideration of Opinions of the Department of Labor

In holding that the travel time following the unpaid clotheschanging time is also unpaid under the FLSA, the court rejected the opinions and arguments of the DOL, that appeared as amicus curiae in this case in support of the plaintiff-employees.

The court discussed the weight that should be given to such opinions and arguments noting that under the Clinton administration and current Obama administration, the DOL took a narrow view of what constituted “clothes” under section 203(o), whereas during the Bush administration, the DOL’s view was much broader and even specifically stated in an Opinion Letter in 2007 that clothes-changing time excluded under Section 203(o) could not be a “principal activity” under the Portal-to-Portal Act—the exact opposite of the position the DOL advanced in this case. The court found these viewpoint switches to be political in nature.

The court noted that the principle of deference to the DOL in interpreting the FLSA is “based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.”

The court decided that in this case, the Department did not put forth anything that would be helpful to the court in deciding the issue, noting, “[n]owhere in the Department’s brief is there a reference to any institutional knowledge of labor markets possessed by the Department’s staff — or to anything indeed to which the parties might not have complete access — that might help the court to decide the case sensibly . . ..” As such, the court declined to defer to the Department‘s interpretation section 203(o).

Good News for Employers of Unionized Employees Who Change Clothes at Work

Employers in the Seventh Circuit who have collectively bargained with their employees that clothes changing before or after their main work activity will not be compensable can take comfort from the U.S. Steel Corp. decision that the clothes changing likely will not be compensable, even if the clothes serve a protective purpose. Furthermore, under the Seventh Circuit precedent, where clothes changing is not compensable time pursuant to a collective bargaining agreement, the time employees spend traveling to and from the clothes changing area will likely not be compensable either.