In a surprise development, on July 26, 2013, the U.S. Department of Labor (DOL) and Solicitor General filed an amicus brief in the U.S. Supreme Court in support of the employer’s position in Sandifer v. United States Steel Corp., which will be argued in the upcoming Supreme Court term. The DOL previously filed an amicus brief in support of the Sandifer plaintiffs on a different issue when the case was heard by the U.S. Court of Appeals for the Seventh Circuit, while remaining silent on the legal issue now before the Supreme Court. The DOL’s present litigation position represents a rejection of its own 2010 Administrator’s Interpretation.

In Sandifer, current and former U.S. Steel unionized employees claimed they were not properly compensated under the Fair Labor Standards Act for pre- and post-shift time spent donning and doffing items such as flame-retardant jackets and pants, hoods, gloves, wristlets, leggings, and steel-toed boots. The district court granted summary judgment in U.S. Steel’s favor on the issue of whether the various items were “clothes” within the meaning of section 3(o) of the FLSA, which provides that, in a unionized setting, time spent “changing clothes” may be excluded from compensable time by a collective bargaining agreement or by a custom or practice of non-compensation.

The Seventh Circuit affirmed the district court’s ruling that these protective items were clothes, but reversed the district court’s ruling that donning and doffing activities excluded from compensation by section 3(o) of the FLSA could still be a compensable principal activity that starts or ends the continuous workday under the Portal-to-Portal Act of 1947. Consistent with its 2010 Administrator's Interpretation, the DOL argued in its amicus brief to the Seventh Circuit that such activities could start the continuous workday, but did not take a position on the clothes issue.

In its opinion, the Seventh Circuit noted the DOL’s “oscillation” in its interpretation of time spent changing clothes under section 3(o) and the Portal-to-Portal Act. Under the Clinton Administration, the DOL took a narrow view of what constituted clothes, but changed course under the Bush Administration, taking a broad view of the term clothes and adding that clothes-changing time excluded by section 3(o) could not be a “principal activity” that starts the continuous workday. Then, under the Obama Administration, the DOL reverted to the Clinton Administration’s position on the definition of clothes and rejected the Bush Administration’s position on “principal activities.” In its 2010 Administrator’s Interpretation, the DOL stated the section 3(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,” and declared that the 2002 and 2007 DOL opinion letters to the contrary could no longer be relied upon by employers. Given these position changes, the Seventh Circuit concurred with the Fourth Circuit that it could not give deference to “the gyrating agency letters on the subject.”

In its amicus brief to the Supreme Court, the DOL has reversed course again, arguing that the “ordinary meaning” of the term “clothes” is “covering for the human body, or garments in general,” and the protective items at issue fall within that ordinary meaning. In a footnote, the DOL quietly acknowledged the inconsistent positions it has taken since 1997 and stated it “does not urge deference to the 2010 Administrator’s Interpretation in the context of this case.” This carefully worded repudiation of the DOL’s Administrator’s Interpretation of clothes under the FLSA leaves open the question whether the DOL’s prior interpretation under the Bush Administration has been restored.

The 2010 Administrator’s Interpretation also noted that in 1997 it had narrowly interpreted the term clothes to exclude protective equipment because section 3(o) was an “exemption” to the FLSA that should be construed narrowly. The DOL’s amicus brief in Sandifer is also a departure from that position, as it now maintains that section 3(o) is not an “exemption” to the FLSA but rather provides employees and employers the “option” of removing clothes-changing and washing activities from FLSA coverage through collective bargaining. The DOL also disagreed with the Sandifer plaintiffs’ position that section 3(o) should be construed narrowly even if it is an “exclusion,” rather than an “exemption.”

We expect the Supreme Court will hear oral argument in Sandifer before the end of the year and will keep readers apprised of developments in the case.