Should employees be paid for "clothing" changes? High court to clarify

The language of the Fair Labor Standards Act mandates that employers pay workers for all periods they spend working. But what exactly is the definition of working? Unfortunately, the statute offers limited analysis. Due to the countless variety of industries, the term "work" can range considerably.

In recent years, however, Congress amended the FLSA and added language that clarified "working" a bit. The language stipulated that employees are not "working" (and thus not entitled to compensation) for "any time spent in changing clothes or washing at the beginning or end of each workday..."

However, this clarification has actually resulted in more questions than answers. A recent case up for review by the U.S. Supreme Court is a prime example that outlines the problem.

A case outlining the dispute

The case is called Sandifer v. U.S. Steel Corp. Hundreds of steel workers have filed suit against their employer because they claim they are not paid for certain "working" time pursuant to the FLSA.

The "working" time in question, they argue, is the time is takes to take on and take off job-mandated "gear" that consists of flame-retardant pants and jackets, gloves, steel-toed boots, hard hats, snoods, safety glasses, and ear plugs.

They argue that this "gear" is not "clothing" under the new FLSA language and therefore they should be compensated.

Court rulings

The district court, however, disagreed with the workers. The court stipulated that the gear the plaintiffs claim they were required to take on and off was in fact "clothing" and thus not compensable under the FLSA.

The plaintiffs appealed to the U.S. Court of Appeals for the 7th Circuit. The appeals court affirmed the lower court's decision. However, the court stated that certain "protective gear" the plaintiffs were mandated to wear, such as safety glasses or ear plugs, were not "clothing" under the FLSA, but indicated that the workers still were not entitled to compensation simply because the time it takes for them to take the gear on and off is "de minimis."

The court stated that, "It is only when an employee is required to give up a substantial measure of time and effort that compensable working time is involved."

U.S. Supreme Court clarification

The case is now up for review in front of the United States Supreme Court. Both parties hope the court will provide some clarification on the definition of "clothing" for purposes of paid working time under the law.

An opinion is expected to be released next summer.