Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the "Clock" Starting when Traveling From the Locker Room

In Sandifer v. United States Steel Corp. the Seventh Circuit considered claims brought by 800 former and current unionized hourly workers at U.S. Steel’s Gary, Indiana steel works facility under the Fair Labor Standards Act (“FLSA”) that they should have been compensated for time spent: (1) putting on clothing-items consisting of flame-retardant pants and jacket, work gloves, boots containing steel or other material to protect the toes and instep, a hard hat, safety glasses, ear plugs, and a “snood” (a hood covering the top of the head, the chin and the neck); and (2) walking from the locker room and work site. The court ruled that neither act could support an FLSA claim and ordered the suit be dismissed in its entirety.

With respect to the time spent changing clothes, the ruling was based on Section 203(o) of the FLSA, which provides that time spent changing “clothes” at the beginning and end of the work day may be excluded from compensable working time by the express terms of, or custom or practice under, a collective bargaining agreement (“CBA”). Here, the CBA between U.S. Steel and the steelworkers union did not require compensation for changing time, so the workers could not make a claim under the FLSA based on the time spent putting on and taking of the clothing at issue. The Seventh Circuit further denied the workers’ arguments that the items at issue were not clothing, but rather, “personal protective equipment” (“PPE”), stating that most of the outfit was clothing that also provide a protective function, and the time spent putting on glasses, a hard hat and ear plugs is de minimis and thus not compensable in any event.

It must be noted, however, that while the Sandifer decision on changing time is helpful overall to employers, it is based on Section 203(o) of the FLSA, which applies only to situations in which there are unionized workers and a CBA that expressly, or by custom or practice, makes changing time non-compensable. Unionized employers without such a CBA and non-unionized employers thus must be very careful in evaluating whether any required clothing changes required in the workplace are compensable. This evaluation may turn on a number of factors, such as the nature of the clothing-items at issue and the amount of time required (is it more than de minimis?).

With respect to the time spent traveling to and from the locker room, the court concluded that this time was not compensable under the Portal-to-Portal Act (29 U.S.C. § 254(a)), which exempts traveling to and from the actual place of performing the “principal activity” the employees are employed to perform from the FLSA’s minimum wage and overtime provisions. Because the court ruled that the clothes changing time in the locker rooms was not compensable under Section 203(o) based on the agreement between U.S. Steel and the union, it was not a “principal activity;” given the terms of the CBA at issue, the workers’ “principal activity” did not begin until they reached their work stations. This decision is in conflict with the Sixth Circuit’s decision in Franklin v. Kellogg Co., 619 F.3d 604, 618-619 (6^th Cir. 2010) thus setting up a circuit split that the U.S. Supreme Court might ultimately decide.

Again, as with the Sandifer decision’s ruling on changing time, its ruling on travel time also hinges on Section 203(o) of the FLSA, so unionized employers must evaluate the terms of their CBAs and non-unionized employers evaluate all factors concerning what may constitute a “principal activity” when determining whether such travel time is compensable.