The United States Supreme Court will answer that question during its upcoming term. In Sandifer, hourly workers requested that the company pay them for the time it takes to put on “personnel protective equipment.” Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012). The equipment includes flame resistant pants and jacket, work gloves, and work boots containing steel.
However, the Fair Labor Standards Act (“FLSA”) provides that an employer does not have to pay an employee for “changing clothes.” So the critical question becomes whether the term “clothes” encompasses safety equipment. The Seventh Circuit here in Chicago decided that the safety equipment still constituted “clothes” and ruled in favor of the company.
The Department of Labor submitted a brief defending the workers. During the Clinton Administration, the Department defined “clothes” narrowly, but defined the term broadly during the Bush Administration. Now, the Department is arguing that its definition during the Bush Administration was incorrect.
The Supreme Court will hear oral arguments on November 4, 2013. The Court will determine whether unions can negotiate for compensation for changing the “protective equipment.” The Court will also have to determine how much deference it will provide to the Department of Labor.