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New 7th Circuit Case On Failing to Pay Workers for Clothes Changing Time Where Collective Bargaining Agreement Did Not Require Pay for Such Time


This blog has mentioned the dispute between employers and employees as to whether changing into and out of clothes or protective equipment should be compensable. One post discussed the opinion published by the U.S. Department of Labor, which decided that changing clothes was considered a principal activity and, therefore, was compensable. Additionally, any and all activities performed after changing into and before changing out of work clothes was compensable, including walking and waiting.

This post will discuss a case in which hourly steel makers in Gary, IN allege that United States Steel Corporation is unlawfully refusing to pay them for the time spent putting on and taking off their clothes (“clothes changing time”) and time spent walking from the locker room to their work stations and back (“travel time”)

The collective bargaining agreement between U.S. Steel and the steelmakers union does not require compensation for that time and no contract between U.S. Steel and the union since 1947 (9 years after the FLSA was enacted) has required payment for that time. Yet the plaintiffs insist that the FLSA requires payment for that time.

The district judge ruled that the clothes changing time was not compensable but that the travel time might be compensable and so he refused to dismiss the suit and he certified the issue of the compensability of travel time for an appeal.

The plaintiffs cross-appealed, maintaining that the clothes changing time is compensable. The cross-appeal did not fulfill procedural requirements as the plaintiffs did not ask either court for permission to cross-appeal. The cross-appeal was therefore dismissed. However, the plaintiffs were still able to argue their case for the compensability of the clothes-changing time in opposition to the appeal.

In 1947, Congress passed the Portal-to-Portal act and, two years later, in the spirit of the Act, added section 3(o) of the Fair Labor Standards Act, 29 U.S.C. Section 203(o) which excludes, from the time during which an employee is entitled to be compensated, “any time spent in changing clothes or washing at the beginning or end of each work day which was excluded from measured working time … by the express terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” The plaintiffs argue that the section is inapplicable because their changing time consists of safety equipment rather than clothes. The statute does not define “clothes”. The alleged clothes, in this case, consist of flame-retardant pants and jacket, work gloves, metatarsal boots (work boots containing steel or other strong material to protect the toes and instep), a hard hat, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin and the neck).

Workers who change at the beginning and end of each work day are changing into and out of work clothes and if they are governed by a collective bargaining agreement which makes that time noncompensable, then the agreement must apply to work clothes, otherwise the provision would have almost no applications.

The fact that the clothing exclusion is operative only if it is agreed to in collective bargaining agreements, implies that workers are normally compensated for the time they spend changing and washing. Section 203(o) provides for this by permitting unions and management to trade off the number of compensable hours against the wage rate – in effect, the workers get more, per hour, in exchange for agreeing to exclude some time from the time for which they get paid.

In one case, the Ninth Circuit Court decided it was important that protective clothing is “different in kind from typical clothing” which the court defined as “warm clothing”. The Court of Appeals thinks this is just to say that work clothes are not street clothes but determines that this is an insufficient analysis. Since workers very rarely change at work from street clothes into street clothes, section 203(o) would be obsolete if the Ninth Circuit were correct. Therefore, the appellate court was correct in determining clothes changing time noncompensable.

The Court of Appeals points to the decision of another court in a similar case, in which the Court noted the significance of “the clear implication … that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement”, and the Court of Appeals maintains that such is the case here. Therefore, if clothes changing time can be legally noncompensable, the court fails to see how it could be considered a principal activity and, consequently, the travel time is also legally noncompensable.

The Court also maintains that to grant the plaintiffs the case would be harmful to the workers in the long run. The employer would have to pay more money or the same amount of money for less work which would result in higher costs for the employer. The employer would compensate for these higher labor costs by lowering hourly wages and so the employees would ultimately end up bearing the weight of these higher costs.

The Court resolved by finding in favor of U.S. Steel and dismissing all charges.

The attorneys at Chicago Overtime Law Center have decades of experience litigating wage and hour cases, including overtime, vacation pay, meal breaks, and tips. The Chicago Overtime Law Center has offices conveniently located in both Oak Brook Terrace and Chicago. If you live in Illinois and have a wage and hour dispute, contact a Kane County overtime attorney today at 312-869-4095 or fill out our online form. Our overtime and unpaid wage lawyers work throughout Illinois including in Naperville and Aurora on unpaid overtime cases.