The U.S. Supreme Court Wrestles With The Meaning Of Clothes Under The FLSA

Nicholas Fortuna, November 12, 2013.

Last week the Supreme Court curiously took oral argument on the meaning of clothes. Under a provision of the Fair Labor Standards Act (FLSA) the time spent “changing clothes” does not count towards the statute’s overtime provisions. The case brought by employees against United States Steel Corporation claimed that the time to put on overalls should count under the FLSA. The employees’ lawyer began his argument by listing items that would not be considered clothes: glasses, earrings, necklaces, wristwatches and toupees. He also included a police officer’s gun, radio, and quarterback’s wristband containing a list of plays. Justice Ginsburg interrupted the detour by asking what this had to do with the facts of this case. Referring to a picture of items the U.S. Steel workers put on and take off – hoods, jackets, and pants, Justice Ginsburg said, “looks like clothes to me.” The attorney for the workers tried to argue that because the items were flame retardant, protecting against workplace hazards, they should not be considered clothes under the statute. Justice Alito pointed out that the principal purpose of wearing clothes has always been to provide protection against the elements, even from thorns.

The steelworkers sought to overturn a unanimous decision by the Seventh Circuit Court of Appeals holding that the items the workers were required to wear were clothes and not covered by the FLSA’s overtime provisions. To eliminate any question about its decision, the lower court even included a picture of a man modeling the clothes at issue. In further rejection of the steel workers’ position, the lower court stated that the time to put on any of the items that would not be considered clothes—glasses, earplugs, and hard hats was trivial and would also not be covered under the statute. The Supreme Court should have let the Seventh Circuit’s decision stand and declined to hear the case because, if not obvious, the result is not of great consequence. We don’t need the Supreme Court to come up with a broad rule determining what should be considered clothes. The issue should be left to the collective bargaining process and for the parties to negotiate their own resolution.

Nevertheless, the Supreme Court chose to hear the case prompting the legal community to wonder why. While oral argument devolved into a tangled discussion of the meaning of clothes, the outcome is unlikely to be so muddled. A decision is due by June of next year and while it is not likely to change the meaning of clothes, it will perhaps give some insight as to why the Court heard this case in the first place.