On February 21, 2013, the United States Supreme Court granted another FLSA certiorari petition, in the matter of Sandifer v. United States Steel Corp.  In the underlying litigation in Sandifer, the plaintiffs sought compensation under the FLSA for time spent donning and doffing certain protective gear.  Although the time spent donning and doffing these articles was defined as non-compensable  under a series of collective bargaining agreements between the employer and the workers' union dating back to the 1940s, and thus potentially subject to an exclusion under the FLSA, the plaintiffs argued that the hard hat, jump suit, protective glasses, boots, and work gloves did not qualify as “clothes” and were more properly characterized as “protective equipment,” separate and distinct from excludable “clothes.”

The United States Department of Labor filed an amicus brief supporting plaintiffs' interpretation of “clothes” as excluding from its definition the protective equipment at issue in the case.  This amicus brief was consistent with an Interpretation Letter issued by the USDOL during President Obama's first term.  However, the interpretation represented a change in the Department of Labor's longstanding position with respect to the compensability of time spent donning and doffing protective clothing of the type at issue in Sandifer.  Given this sea change in interpretive guidance, purporting to render compensable time long deemed properly excludable from hours worked under the FLSA, the Seventh Circuit dismissed the Department of Labor's amicus brief as little more than the policy expression of the current executive and questioned the weight which ought to be given to such positions, finding in favor of U.S. Steel.  Sandifer v. United States Steel Corp., 2012 U.S. App. LEXIS 9302 (7th Cir. May 8, 2012).

In resolving Sandifer, in addition to determining the merits of certain donning and doffing claims based on protective equipment, the Supreme Court opinion may expand upon the Court's analysis in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (U.S. 2012) regarding the weight which is to be given to Department of Labor interpretations or opinions, and the administrative steps the Department can and should take to provide clear guidance to employers which the Court can uphold.  If, as the Seventh Circuit remarked, the Department of Labor's “positions” are little more than a fleeting, partisan expression of policy, rather than a specific explanation of the correct interpretation of statutes or regulations, the weight given to Department of Labor interpretations and opinion letters may be diminished in judicial proceedings interpreting the FLSA.  Another rebuke to the Department of Labor, echoing the Court's negative view of the Department of Labor's waffling on the issue of the exempt status of pharmaceutical representatives as expressed  in Christopher, could potentially slow the current Department's efforts to seek changes in established law through interpretations and amicus briefs.