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Opinion analysis: “Clothes” are items commonly regarded as articles of dress

Often, the Supreme Court’s Justices don’t reveal their views of a case at oral argument.  But sometimes, oral argument tells you everything you need to know.

When the Court heard argument in November in Sandifer v. United States Steel Corporation—a case involving the definition of “changing clothes” under the Fair Labor Standards Act (FLSA)—it seemed evident that the Justices were not going to agree with the definitions offered by either the workers or the employer they sued.  But it also seemed evident that the Court would agree with the employer’s bottom-line position.  In a unanimous opinion on Monday, the Court did exactly what the Justices’ comments at argument suggested.

A section of the FLSA (Section 203(o)) provides that, if an employer and a union agree to make “time spent in changing clothes” noncompensable, that time will not count for purposes of the statute’s minimum wage and overtime provisions.  Collective bargaining agreements dating back to 1947 between U.S. Steel and the United Steelworkers of America provide that workers are not paid for the time they spend donning and doffing protective clothing and equipment at the beginning and end of the workday.  The protective clothing and equipment that a U.S. Steel worker must wear depends on the worker’s job task.  But the company’s workers often must wear such items as hardhats, safety glasses, earplugs, respirators, “snoods” (protective hoods that extend to the chest), flame-retardant hoods, flame-retardant jackets, flame-retardant pants, work gloves, “wristlets” (protective Kevlar sleeves that cover the lower arm and the opening of the work glove), steel-toed boots, and “leggings” (protective Kevlar sleeves that cover the lower leg and the opening of the boot).

Sandifer involves a suit brought by a number of U.S. Steel’s workers who seek to recover, under the FLSA, for the time they spent donning and doffing these protective items.  They claimed that their activities during that period of time did not constitute “changing clothes” for purposes of the statute.  Both the district court and the Seventh Circuit rejected this argument and granted summary judgment to the company.  The Supreme Court granted certiorari to resolve the question of the meaning of “changing clothes” under Section 203(o), a question that had divided the circuits.

In Monday’s opinion, the Court affirmed the Seventh Circuit’s judgment.  All of the Justices joined Justice Scalia’s opinion for the Court, though Justice Sotomayor declined to join a footnote in the opinion that involved an issue not squarely presented by the case.

In their briefing and at oral argument, both the workers and the employer pressed definitions of “clothes” that appeared to be quite technical if not contrived.  At the argument, the Justices appeared disinclined to adopt those definitions.  They instead seemed to prefer to apply the ordinary meaning of the word.  And that is precisely the approach that Justice Scalia’s opinion took.

Consulting dictionaries from the period during which Congress added Section 203(o) to the FLSA, the Court concluded that “clothes” refers to “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  The Court rejected the workers’ argument that “clothes” could not refer to items designed to protect against workplace hazards.  Justice Scalia noted that, for many workers (he listed “factory workers, butchers, longshoremen, and a host of other occupations”), “protective gear is the only clothing that,” when donned or doffed, would trigger a requirement of compensation in the absence of Section 203(o).  The workers’ position, then, would “run[] the risk of reducing § 203(o) to near nothingness.”

In their brief and at oral argument, the workers had offered a variety of colorful hypotheticals (involving the rock band KISS, Captain Kangaroo, and police officers and their guns, among others) to illustrate what they saw as a need to adopt a narrow definition of “clothes.”  But the Court concluded that the workers’ “fanciful hypotheticals give us little pause.”  “The statutory context,” Justice Scalia explained, “makes clear that the ‘clothes’ referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the § 203(o) exception.”

In emphasizing that the ordinary meaning of “clothes” applies in this context, the Court explicitly rejected “the view, adopted by some Courts of Appeals, that ‘clothes’ means essentially anything worn on the body—including accessories, tools, and so forth.”  As Justice Scalia’s opinion noted, U.S. Steel had essentially urged the Court to adopt that broad view.  The opinion explained that such a construction might be more readily administrable than the one the Court adopted.  But, “[f]or better or for worse,” Justice Scalia wrote, Congress “used the narrower word ‘clothes.’”

In addition to pressing for a narrow definition of “clothes,” the workers argued that “changing” clothes requires taking off the clothes a person is wearing and putting on new ones.  Thus, they contended, simply putting on protective clothing over one’s street clothes—as at least some of U.S. Steel’s workers do when they arrive at work—did not constitute “changing clothes.”  The Court acknowledged that “the normal meaning of ‘changing clothes’ connotes substitution.”  But it observed that “the phrase is certainly able to have a different import”—namely, altering what one is wearing, whether or not one removes what one had been wearing before.  The Court concluded that this latter, broader understanding of “changing clothes” is the one that best fit the statute.  The Court reasoned that the decision whether to take off one’s street clothes before putting on work clothes depends on the idiosyncrasies of personal preference, changing fashions, weather conditions, and so forth, and that an interpretation of Section 203(o) that depended on such variables would not provide a solid basis for employers and unions to negotiate collective-bargaining agreements.

Having resolved these definitional disputes, the Court readily concluded that the vast majority of the items donned and doffed by the plaintiff workers at the beginning and end of the work day—all but safety glasses and ear plugs—constituted “clothes,” and that the donning and doffing constituted “changing” those clothes.  As for the safety glasses and ear plugs, the Court held that, as a whole, the workers’ time donning and doffing their protective items at the beginning and end of the day constituted “time spent in changing clothes,” and that the small amount of time it took to put on and take off ear plugs and safety glasses did not change that conclusion.  Justice Scalia’s opinion explained that we say that we spent the day skiing “even when less­-than-negligible portions of the day are spent having lunch or drinking hot toddies.”  (Presumably, he meant to say “more than negligible.”)  “The question for courts,” he said, “is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’”


In an opinion on Monday, the Supreme Court decided that employers and unions could agree to exclude the time workers spend putting on and taking off protective clothing from the work time that is subject to the minimum wage and overtime protections of the Fair Labor Standards Act.  Sandifer v. United States Steel Corporation involved the application of a provision added to the Act in 1949, which allows collective-bargaining agreements to exclude time spent “changing clothes” from the work time subject to the statute.  Employees at U.S. Steel’s Gary, Indiana, plant worked under a collective-bargaining agreement that excluded the time spent putting on and taking off protective clothing items at the beginning and end of a worker’s shift.  A number of these employees sued the company to seek compensation for the time they spent putting on and taking off those items.  They argued that, because the clothing that they put on and took off served a protective function, it did not constitute “clothes” for purposes of the statute.  And they argued that, because many of them put their protective clothing on over their street clothes without taking any other clothing off, their actions did not constitute “changing” clothes.  The Court unanimously rejected those arguments.  It concluded that “clothes” in the statute must be read according to the ordinary meaning of the word, and that the protective items worn by the workers — such as protective hoods, jackets, and pants — would ordinarily be described as clothes, even if they serve a protective function.  And the Court concluded that “changing” clothes can include putting on new clothes over one’s old clothes, not just taking off one outfit to put on another.  Accordingly, the Court ruled for U.S. Steel and held that the workers were not entitled to be paid for the time they spent putting on and taking off those protective clothes.

Recommended Citation: Samuel Bagenstos, Opinion analysis: “Clothes” are items commonly regarded as articles of dress, SCOTUSblog (Jan. 28, 2014, 10:09 PM),