Equipment Overtime Case Heads to High Court

     WASHINGTON (CN) – The U.S. Supreme Court agreed Tuesday to decide whether steel workers deserve overtime pay for time spent changing into work clothes and walking from locker rooms to their work site.
     In a federal complaint against U.S. Steel Corp., an 800-member class of former and current hourly employees at a Gary, Ind., plant alleged violations of the Fair Labor Standards Act of 1938.
     Though their collective bargaining agreement precludes payment for changing and travel time, the class said that the statutory provisions of FLSA override the union agreement.
     U.S. District Judge Robert Miller divided the question, ruling that the act does not require compensation for clothes-changing time, and then asked the 7th Circuit whether workers should be compensated for travel time.
     While the FLSA explicitly excludes from overtime “any time spent changing clothes or washing at the beginning or end of each workday which was excluded from measured working time … by the express terms or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee,” uniform changes involve donning “safety equipment” rather than “clothes,” voiding the exception.
     In the May 2012 answer, the federal appeals court included a photograph of a steel worker “modeling” his daily outfit.
     Judge Richard Posner, who penned the U.S. Steel decision, has frequently included photographs in his opinions, including his recent use of a photo of Bob Marley to illustrate the concept of dreadlocks.
     He and two colleagues concluded that the safety function of the clothing does not void the exemption.
     “Protection-against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting-is a common function of clothing, and an especially common function of work clothes worn by factory workers. It would be absurd to exclude all work clothes that have a protective function… and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms,” he wrote.
     The opinion notes that the 9th Circuit alone is an “outlier” among federal appeals courts that have issued similar rulings.
     Proceeding to the issue of travel time, the 7th Circuit ruled that employers do not have to pay workers for time spent walking from the locker room to their work site.
     Workers failed to distinguish the activity from an exception to the Portal-to-Portal Act, which generally requires employers to pay for time spent traveling between “principle activities” while at work. Changing clothes is not a “principal activity,” the three-judge panel determined.
     Posner explained the paradox that would be created under the plaintiffs’ interpretation: “Suppose it is 100 yards from the plant entrance to the locker room and another 100 yards to the work station. On the plaintiffs’ view, traversing the second 100 yards is compensable, though traversing the first 100 yards is not, but if the locker room were adjacent to the work station none of the workers’ travel time would be compensable even though the amount of walking they’d be doing would be identical. What sense could that make?”
     Congress had specifically added exceptions to the FLSA, which explicitly allow unions and management to negotiate travel time pay, eliminating disruptions caused by the Supreme Court rulings that FLSA required overtime payment for the activities.
     The travel time ruling creates a circuit split on the issue; the 6th Circuit recently released an opposite ruling in Franklin v. Kellogg Company. Noting the circuit split, the 7th Circuit circulated its opinion to all active judges before release. No judge voted to rehear the case en banc, and the panel later denied a rehearing in June.
     About a week later, the Supreme Court sided with drugmaker GlaxoSmithKline in an overtime complaint filed by sales representatives known as “detailers.”
     In taking up the claims of the steel workers Tuesday, the high court limited its consideration to how Section 203(o) of the FLSA defines “changing clothes.”

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