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US Supreme Court Agrees to Hear Case Challenging Ruling That Time Spent Changing out of Protective Gear is not Compensable When Union Contract Gave up That Right


While it is the duty of the courts to uphold the law as it is written, courts will sometimes consider the opinions of other entities when making their decisions. For example, the U.S. Department of Labor (DOL) is frequently consulted on matters of employment law. However, courts may find it difficult to rule in accordance with the DOL’s opinions when those opinions keep changing.

One such issue, which has been much debated between employers and employees, is whether or not the time spent changing into and out of work clothes should be considered a necessary part of the employee’s job and therefore subject to compensation. The FLSA states that “changing clothes … at the beginning or end of each workday” is excluded from compensable time. However, the Act does not define “clothes”, leaving the question for many employees of whether or not safety gear can be considered “clothes”.

In 2010, the DOL issued a statement saying that protective gear is not considered clothing and that changing clothes can be considered a “principal activity” – even if it is not compensable by itself, that would make the following activities compensable, such as walking from the locker room to the work site. However, that is just the most recent decision by the DOL. Over the course of the past fifteen years, the DOL has changed its position on this issue three times, leaving courts doubtful as to the relevance of consulting the DOL’s opinion.

One such case is a class action of 800 current and former employees of U.S. Steel in their location in Gary, Indiana. The district judge ruled that the clothes changing time was not compensable but that the time spent traveling to and from the work site might be compensable and, on those grounds, refused to dismiss the case. The lawsuit then moved to the U.S. 7th Circuit Court of Appeals.

The FLSA states that “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time … by the express terms of or by the custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” In this case, the employees were subject to a collective bargaining agreement made on their behalf by their union, which argued for higher hourly wages for the employees in exchange for not paying the employees for the time spent changing into and out of their protective gear or the time spent traveling between the room where they change into their protective gear and the worksite.

However, the lawsuit alleges that the protective gear in this case does not qualify as “clothes” which is not defined by the Act. The clothes at issue here include 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). The glasses and ear plugs are not considered clothes but the hard had might be. Even so, glasses and ear plugs would only take a matter of seconds to put on and take off, which is too small an amount of time to be covered under the Act.

The Court points out that the protective gear sure seems like clothes, but the plaintiffs insist that it is not. The Court then goes on to state that it is both. “Protection – against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting – is a common function of clothing,” thereby eliminating any debate about the difference between clothes and protective gear.

The Court agreed with the district judge that the time spent changing clothes was not compensable. However, due to that ruling, the district judge’s ruling that time spent traveling to and from work was compensable was incorrect. The Court points out that the Portal-to-Portal Act exempts from the minimum wage and overtime provisions of the FLSA “walking, riding or traveling to and from the actual place of performance of the principal activities which such employee is employed to perform.” Had the district court ruled that the time spent changing clothes was a principal activity, then the travel time might have been considered compensable. As it is, the Court found that the exemption applies.

The FLSA states “that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by an agreement.”

The 7th Circuit Court of Appeals therefore found that the lawsuit had no merit and should be dismissed. The plaintiffs appealed and the case will now be heard by the U.S. Supreme Court. The decision they reach will affect all employers who refer to that section of the FLSA to determine how to pay their employees.

The Chicago overtime lawyers at the Chicago Overtime Law Center are investigating potential unpaid overtime claims against large corporations, franchisors and manufacturing companies for failure to pay for work breaks and all work hours including for showering and changing if required by the employer or work conditions. We are also investigating claims for non-management employees for misclassifying employees as managers, erasing or altering time sheets or time records, failing to pay for breaks, pressuring workers not to report or record overtime, and otherwise failing to pay workers for overtime and other wages. If you are the victim this practice call us at (312) 869-4095 or contact us online.

The Illinois overtime attorneys at the Chicago Overtime Law Center have decades of experience fighting for wage earner’s rights. We have a team of overtime attorneys who focus on nationwide class action lawsuits and work out of Chicago and Oak Brook offices and prosecute claims for workers all over the Chicago area including Rockford and Waukegan. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Kane and Cook Counties.

Our Elmhurst and Glenview overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. Many employers misclassify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.

The Chicago Overtime Law Center is based in Chicago, and represents clients throughout the country who have not been paid for the overtime hours that they worked. If you believe that you are owed overtime wages, contact one of our Chicago class action attorneys by phone at (312) 869-4095 or through our online form.