Unionized employers whose employees must wear protective equipment may soon receive direction on whether they must pay for time spent donning and doffing the gear. On February 19, 2013, the U.S. Supreme Court granted review on the scope of Section 203(o) of the Fair Labor Standards Act (FLSA). Section 203(o) excludes time spent changing clothes or washing at the beginning or end of each workday from the definition of “compensable time” if it is treated as non-work time by a collective bargaining agreement. For the last 15 years, a battle has raged over what qualifies as “changing clothes,” i.e., does it include protective equipment and if so, what forms of protective equipment.

The U.S. Department of Labor (DOL) has flip-flopped on the issue several times since 1997. Under the Obama Administration, the agency has taken the position that protective equipment is outside the scope of Section 203(o). In Sandifer v. U.S. Steel Corp., Nos. 10-1821, 10-1866 (7th Cir. May 8, 2012), the Seventh Circuit Court of Appeals (which has jurisdiction of appeals emanating from courts in Illinois, Indiana, and Wisconsin) ruled that time spent donning and doffing protective clothing at a steel mill in Indiana was non-compensable. In so ruling, the appellate court specifically declined to give any deference to the DOL’s current, contrary interpretation, pointing out that the agency’s interpretation changed based on the political party in power at a given time.

While clarity is always beneficial, the Section 203(o) issue itself may have limited financial impact because the actual donning and doffing of safety equipment often takes little time. Plaintiffs raised the additional question whether non-compensable time (either pursuant to Section 203(o) or because it is itself de minimis) can trigger the continuous work day doctrine so that all subsequent activities such as travel or waiting time—which can be of significant duration—become compensable. The U.S. Supreme Court refused certiorari on this issue, but may nonetheless give some inkling of its views in addressing the specific question before it.

Of greatest import will be the Court’s views on deference. Approval of the Seventh Circuit’s reaction to the shifting sands of agency interpretation could create greater regulatory stability. Conversely, rejection of the Seventh Circuit’s position on deference would further empower not only the DOL but other federal regulators. This case bears watching by all employers, regardless of industry, for this reason.