Putting On Work Clothes And Walking From Locker Room Not Compensable For Overtime Pay

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.
Upon finding that the clothes plaintiffs had to wear were covered as “clothes” under the Fair Labor Standards Act, the court then turned to the issue of whether putting on or taking off these clothes was by custom or by practice of a collective bargaining agreement excluded from compensation. The court found that the plaintiffs’ union had clearly not included the putting on and taking off as clothes as compensable under the collective bargaining agreement. As such, the time plaintiffs took putting on or taking off their work clothes was not compensable for purposes of the Fair Labor Standards Act’s overtime and minimum wage provisions.
The court upon finding that putting on and taking off work clothes at the steel factory was not compensable then turned to the second question as to whether plaintiffs’ walking to and from the locker room and worksite was. The court found that the district court’s position that that time was compensable was erroneous and misunderstood the spirit of the Fair Labor Standards Act. The court found that since the time putting on and taking off work clothes was not compensable under the collective bargaining agreement, then time walking to and from the locker room to the workstation after putting the clothes on and off also was not. The court found that because time putting on and off clothes was not compensable, that time by definition was not a “principal activity.” Under the Portal-to-Portal Act as codified in the Fair Labor Standards Act, only time walking from one principal activity to another principal activity at the workplace was compensable. Time spent from a non-principal activity (in this case putting on work clothes) to a principal activity (making steel at the workstation) was excluded from compensation by the Act.
The Seventh Circuit recognized that its decision in this case created a circuit split as it contradicted the Sixth Circuit’s 2010 opinion in Franklin v. Kellogg Co. In that case the Sixth Circuit had found that even if putting on and taking off work clothes was excluded from compensation under §203(o) of the Fair Labor Standards Act, it was still a “principal activity” for purposes of considering whether travel time from the locker room to the workstation was compensable. The Seventh Circuit also acknowledged that its decision ran counter to the Department of Labor’s position on the issue, finding that the agency wasn’t owed it usually high deference because it had changed its position every time its administration changed.
Although recognizing its departure from the Sixth Circuit and the Department of Labor, the court still went forward with its decision to exclude both time putting on work clothes and time spent walking from the locker to the workstation from compensation. This decision is a major step back for workers across the nation, the court’s claims that its decision actually helps them in keeping their jobs notwithstanding. The court spent little time discussing how much time in this case workers lost every day putting on their bulky work gear and walking from their lockers to the workstation. For many workers, only 10 to 15 minutes lost per day is a significant time burden that can translate into hundreds of dollars a year. Compounded with the fact that this time would probably push workers into overtime, the rightful compensation workers lost by this decision is considerable. Happily, the Seventh Circuit’s decision here may force the Supreme Court to finally rule on this issue in order to resolve the circuit split between the Seventh and Sixth Circuits. Hopefully the Supreme Court will take employee concerns more seriously into account than the Seventh Circuit did here.

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