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On appeal, the Seventh Circuit held that the clothes at issue in this case – flame-retardant pants and jacket, work gloves, work boots, a hard hat, safety glasses, ear plugs, and a hood – are clothes under section 203(o), and therefore the time spent putting on and taking off such items are not compensable. To the extent the hard hat, glasses, and ear plugs were not technically “clothes,” the court noted that putting on these items did not qualify as compensable “work” because the time spent in such activity was de minimis. Accordingly, U.S. Steel was not required to compensate its employees for the time spent changing into and out of work clothes.

The conclusion reached by the Seventh Circuit in Sandifer conflicts with Ninth Circuit authority holding that “special protective gear [is] different in kind from typical clothing” and is not “clothes” under section 203(o). Still, the Fourth, Sixth, Tenth, and Eleventh Circuits have adopted a different definition – one that includes anything one “wears,” including “accessories” such as ear plugs and safety glasses.

The time it takes for an individual employee to don or doff work related clothing may seem inconsequential, but when such time is aggregated in class and collective actions it can be significant. Thus, the Supreme Court’s resolution of what constitutes “changing clothes” in the context of section 203(o) may have a significant impact on employers nationwide.

Photo credit: Matt Collingwood

While it may sound simple to determine what it means to “change clothes,” the issue is not so simple, particularly when the clothing also protects the employee. Is an apron “clothing”? Is a hardhat? What about mesh gloves? Or arm guards? Steel-toed shoes? Where to draw the line? The Wage and Hour Division of the Department of Labor has shifted its opinion three times. First, in 1997 it took the position that protective safety equipment worn over apparel was not “clothing.” Then, in 2002 it took a 180 degree turn, declaring that “changing clothes” applies to “the putting on and taking off of the protective safety equipment typically worn in the meat packing industry. . . .” In 2010 the Division completed the circle by concluding that changing clothes “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”

In Salazar, unionized employees of a turkey processing plant in Colorado wore aprons, plastic sleeves, gloves, hard hats, earplugs, and some even wore mesh gloves, knife holders and arm guards. They sought compensation for their time “donning” or “doffing” these items each day. In affirming summary judgment for the employer, the Tenth Circuit declined to defer to the Wage & Hour Division’s most recent interpretation of the law, or any of its interpretations, because it had reversed course three times. Moreover, the court declared the agency’s current position is “not . . . particularly well-reasoned.”

Instead, the court took a common sense approach, finding that the ordinary meaning of “clothes” encompassed all of the items worn by these plant workers, and rejecting any distinction based on whether the items are “ordinary,” “street clothes,” or worn for safety or protective purposes, as not “particularly coherent or workable.” The court also discarded the approach taken by the Ninth Circuit—the one federal circuit court that has ruled to the contrary—that “generic” protective clothing, such as boots, frocks and hard hats, should be distinguished from “unique” protective clothing, such as mesh gloves or knife holders. The “unique” equipment worn by these turkey plant workers was not viewed as sufficiently cumbersome, heavy or complicated to fall outside of the definition of “clothes.”

With this latest ruling, we now have six federal appellate circuit courts finding that donning and doffing protective equipment is not compensable work time under these circumstances, and one going the other way. But the battle over what constitutes compensable time changing “clothes” no doubt will continue to rage, at least until more cases clearly delineate when employees must be paid for putting on or taking off their protective equipment.

Photo credit: Matt Collingwood

In light of the Circuit split, the U.S. Supreme Court granted review of the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., and has now issued its opinion.

The Kasten case involved an unwritten, oral complaint to the employer, thus implicating both issues (1) and (2) above. Kevin Kasten worked at a Saint-Gobain manufacturing plant in Wisconsin. Kasten claimed that on several occasions he complained to his supervisors and a Human Resources generalist that the location of the time clocks was illegal because it prevented employees from being paid for time spent donning and doffing their required protective gear, and said that he might file a lawsuit. After frequently being warned about not recording his comings and goings on the time clock, Kasten was terminated. He sued Saint-Gobain, claiming that his employment was terminated in retaliation for his complaints in violation of the FLSA. The Western District of Wisconsin dismissed Kasten’s case, holding that unwritten, oral complaints are not protected activity under the FLSA’s anti-retaliation provision. The Seventh Circuit affirmed, holding that while internal complaints to an employer are protected under the FLSA, such complaints must be in writing because the term “filed” implies a writing. The court thus affirmed the dismissal of Kasten’s complaint.

In light of the circuit split surrounding the interpretation of the phrase “filed any complaint,” the Supreme Court granted review. The Court vacated the Seventh Circuit’s decision, holding that unwritten, oral complaints are protected. Justice Breyer (joined by Justices Roberts, Kennedy, Ginsburg, Alito and Sotomayor, with Kagan not taking part) held that while the meaning of the phrase “filed any complaint” was ambiguous, considering the purpose and context of the statute, it should be interpreted to include unwritten, oral complaints. The Court reasoned that excluding oral complaints would: (1) undermine the FLSA’s enforcement scheme as the anti-retaliation provision enables employees to report substandard conditions without fear of economic retaliation, (2) disadvantage those with difficulty making requests in writing such as the illiterate, less educated and/or overworked, (3) prevent government agencies from using hotlines, interviews and other oral methods of receiving complaints, and (4) discourage private employers from using informal workplace grievance procedures to secure compliance.

In order to ensure fair notice to the employer, the Court held that the phrase “filed any complaint” contemplates “some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.” The Court articulated the following standard: a complaint is “filed” when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.” The complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both the content and context, as an assertion of rights protected by the statute and a call for their protection.”

Surprisingly, the Court declined to comment on whether the FLSA protected only complaints filed with the government or whether complaints to an employer are also protected. The Court reasoned that, while the issue was addressed by the Seventh Circuit, it was not raised by the Company in its opposition to Kasten’s petition for certiorari and there was no need to resolve it in order to decide the oral/written issue. In his dissent, Justice Scalia (joined by Thomas) criticized the majority’s approach, noting that the issue was fairly encompassed within the Company’s opposition to the petition for certiorari, and would have been more logically addressed first. Justice Scalia would have affirmed the dismissal of the complaint on the ground that the plain meaning of “filed any complaint” and its context make clear that the anti-retaliation provision contemplated an official grievance filed with a court or agency, not oral or written complaints to an employer. Thus, the circuit split on whether a complaint must be filed with the government to be protected remains. However, employers are cautioned to tread carefully and be mindful that a majority of the circuit courts have extended the FLSA’s protection to internal company complaints.

A vacation or sick leave buy-back program typically affords an employee the opportunity to cash-out his or her unused vacation or sick leave benefits. Such programs incentivize employees to work rather than take unnecessary vacation or sick leave (in order to retain the pay benefits). Employers also utilize these programs to save on the cost of overtime and per-diem workers. In Chavez, the City’s employees were subject to such a vacation and sick leave buy-back program. However, when the City would determine its employees’ overtime rate by calculating the employees’ regular rate to include “straight time” and add-on payments, it did not include vacation or sick leave buy-backs.

In its analysis, the Tenth Circuit first noted that pay for vacation and sick leave actually taken is not part of the FLSA’s regular rate calculation. Regarding the issue that arises when an employee works instead of taking his of her vacation or sick leave day, the court agreed with the Department of Labor’s position on the matter – vacation buy-back is not part of the regular rate, but sick leave buy-back is. According to the Department, vacation leave pay should not be included in the regular rate because it is not compensation for actual work, whereas sick leave pay should be included in the regular rate because it is analogous to an attendance bonus.

There is somewhat of a circuit split as to whether sick leave buy-backs should be included in the regular rate. For instance, the Sixth Circuit has held that sick leave buy-backs should not be included because “awards for nonuse of sick leave are similar to payments made when no work is performed due to illness...” Featsent v. City of Youngstown, 70 F.3d 900, 905 (6th Cir. 1995). Thus, Chavez represents the Tenth Circuit’s split from the Sixth Circuit, and joining with the Eighth Circuit and Department of Labor, in holding that sick leave buy-backs should indeed be included in an employer’s calculation of the FLSA regular rate.

This entry was written by Milton Castro.

Image credit: scherbet