A federal court has just held that putting on work clothes and walking from the locker room to the workstation is not compensable time under the overtime and other provisions of the Fair Labor Standards Act. The Seventh Circuit, in an opinion last month by Judge Richard Posner, found that the Portal-to-Portal Act, which amended the Fair Labor Standards Act, did not require companies to compensate workers for the time they spent putting on and removing required protective work gear and walking to and from their lockers and workstations. This ruling in Sandifer v. U.S. Steel Corp. contradicts a 2010 decision by the Sixth Circuit that held that both activities were compensable under the law. As overtime pay issues continue to heat up the courts after the Supreme Court’s decision this week in Christopher v. SmithKline Beecham Corp., the Seventh Circuit’s ruling creates an inter-circuit split on an overtime pay issue ripe for another Supreme Court decision.
Sandifer v. U.S. Steel Corp. concerned workers at an 800-employee United States Steel plant in Gary, Indiana, who complained about not being compensated for their time putting on and taking off required work clothes and walking from the locker room to their work stations and back. This time went beyond their 40 hours per week work schedule, and as such also involved an issue of unpaid overtime. The plaintiffs argued that under the Fair Labor Standards Act, as amended by the 1947 Portal-to-Portal Act, this time was not excluded as non-compensable time spent putting on “clothes.” Under § 203(o) of the Fair Labor Standards Act, time spent putting on clothes and washing before and after a shift is excluded as compensable time under the overtime and minimum wage provisions if it is part of custom for such time to be excluded or is excluded by the collective bargaining agreement. The question in this case was whether the work clothes plaintiffs were required to wear were properly “clothes” under §203(o). As the Fair Labor Standards Act does not define what “clothes” are under the provision, the Seventh Circuit here undertook an analysis of the work clothes plaintiffs had to wear to determine whether they were properly “clothes.”
In determining whether plaintiffs’ required work clothes were properly “clothes” under §203(o), the court included a photograph of what plaintiffs were required to wear. Plaintiffs were required to put on flame retardant pants and jackets, work gloves, steel boots, earplugs, a hood, safety glasses and a hard hat at work every day. The court found that while the safety glasses, earplugs and hardhat were not “clothes” under §203(o), as the time spent putting them on was de minimis they were not an issue in this case. The court then turned to consider whether the other required clothing were “clothes” under §203(o) and rejected the plaintiffs’ arguments that because they were used to protect plaintiffs from workplace hazards that they were not. The court found that assuming that any clothes that protected the wearer were not “clothes” under §203(o) and instead protective work gear would be too narrow a view of the statute, as almost all clothes except waiter or bellboy uniforms would be excluded. The court found instead that the clothes that the steel workers were required to wear were more clothes than protective gear, and as such were covered by §203(o) of the Fair Labor Standards Act.