If you are like me you looked at that headline and said “What?” or “Really?” Can’t we accomplish that with a dictionary? The answer to that question is apparently not. So the SCOTUS will decide an issue that has been argued in many courts in the past 20 years.The irony is that we will have a group of people who black robes deciding the defintion of clothes. Background
This issue is part of the Fair Labor Standards Act. It is a determination of whether an activity is a necessary part of the employee’s working day and as a result the regular occurrence of such an activity may ultimately put the employee in to a situation of working overtime. As we all know overtime requires additional pay for non-exempt employees. There are a number of preliminary or postliminary activities that may or may not be compensable. Donning and doffing some forms of equipment or clothing may be included in these activities. See my post Small Business Friday: What the Heck is “Doffing?” for a more thorough explanation.
What trumps what?
On the surface what the SCOTUS will be deciding is whether clothing is covered by the FLSA or can union contracts trump the FLSA. The section of the FLSA being discussed is Section 203(o) which says “Hours Worked.— In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”
The real argument
The real argument the Supreme Court will be deciding on is focused on whether or USDOL interpretations hold sway over the original language of the FLSA. The arguments surrounding “donning and doffing” have been presented in multiple courts with differing opinions being offered depending on the case or the circuit in which it was presented. The UDDOL itself has altered its opinion several times as well. In the case that will be reviewed by the SCOTUS the Seventh Circuit appeals court “ruled that time spent donning and doffing protective clothing at a steel mill in Indiana was non-compensable.” Further, according to Danuta Bembenista Panich of Ogletree Deakins “…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.”
Attorney Panish says the decision of the Supreme Court is one that all employers need to pay attention to. It is about stability versus changing regulations. If the SCOTUS backs the 7th Circuit’s view that the FLSA takes precedent then there will be some possible stability or at least a slowing down of changing regulations. If they reject the 7th Circuit’s argument, this will give the USDOL and other government agencies a great deal more power in altering the regulatory landscape without benefit of legislation.
So stay tuned.