Recent Supreme Court Development: Sandifer v. U.S. Steele Corporation

On January 27, 2014, the Supreme Court decided Sandifer v. United States Steel Corp., __ U.S. __, 134 S. Ct. 870 (2014), wherein it addressed the scope of Section 3(o) of the FLSA. Before addressing the Court’s holding, here is some background:

The FLSA generally requires that employees be paid a minimum wage for all hours worked and overtime premium compensation (calculated at 150% of the employee’s regular pay rate) for hours worked over 40. The FLSA’s Portal-to-Portal amendments exclude from compensable work time activities which are “preliminary to or postliminary to” the employee’s “principal activities.” 29 U.S.C. § 254(a)(2). In Steiner v. Mitchell, 350 U.S. 247, 76 S. Ct. 330 (1956), the Supreme Court held that activities that are “integral and indispensable” to an employee’s principal activities are themselves principal activities and, therefore, are not “preliminary” or “postliminary” activities under the Portal-to-Portal amendments. Under Steiner, many pre-shift and post-shift activities remain compensable. For example, the time associated with food processing workers’ donning of sanitary and protective gear is compensable. See, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S. Ct. 514 (2005); De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d. Cir. 2007).

The FLSA contains an exception to the general rules discussed above. In particular, FLSA Section 3(o) permits employers and labor unions to enter into agreements that exclude from the compensable workday “time spent in changing clothes or washing at the beginning or end of each workday.” 29 U.S.C. § 203(o) (emphasis supplied). Thus, under Section 3(o), activities that would otherwise be compensable under Steiner – such as, for example, a poultry worker’s gathering and donning of sanitary gloves, aprons, smocks, and hairnets – can become non-compensable by virtue an agreement between the employer and the union to exclude such time from compensation. Of course, this would require a finding that the sanitary gloves, aprons, smocks, and hairnets constitute “clothes” under Section 3(o).

This brings us to Sandifer, where the Court was called upon to decide whether various “protective gear” donned by steelworkers prior to their paid shift constitute “clothes” under Section 3(o). The gear included: “a flame-retardant jacket, pair of pants, and hood; a hardhat; a ‘snood’; ‘wristlets’; work gloves; leggings; ‘metatarsal’ boots; safety glasses; earplugs; and a respirator.” Sandifer, 134 S. Ct. at 874. The employer and labor union had agreed that employees would not be paid for the time associated with the donning and doffing of such gear. But the plaintiffs – who cared little about the agreement struck by their union – wanted to be paid anyway, and, under Section 3(o) the employer-union agreement prevented plaintiffs from being paid only if the protective gear constituted “clothes.”

In a 5-4 decision split along the usual ideological lines, the Court held that all of the protective gear listed above constituted “clothes” except the safety glasses, earplugs, and respirators. Moreover, the Court reasoned that, since the great majority of the items donned were “clothes,” none of the plaintiffs’ changing time was compensable. To hold otherwise, would require courts to engage in temporal nit-picking (e.g. trying to separate out the time spent donning safety glasses, earplugs, and respirators from the time spent donning the various “clothing” items).

In the author’s view, it’s important to recognize the limited reach of Sandifer. Since FLSA Section 3(o) only applies to unionized workplaces, the great majority of FLSA lawsuits are not impacted by this decision.

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