Stacey Smiricky Says Employers Will Have to Review Collective Bargaining Agreements Depending on How Court Defines ‘Changing Clothes'

The Sandifer v. United States Steel Corp. case argued before the Supreme Court on November 4 could create a new definition of "changing clothes" under the Fair Labor Standards Act. Steelworkers claimed their employer was violating the law by not paying them for time spent changing into required safety gear and walking to their work stations. Time spent changing clothes can be excluded from work time under FLSA, but the plaintiffs contend that the safety gear is not "clothes."

Faegre Baker Daniels labor and employment partner Stacey Smiricky told The Society for Human Resource Management that employers would be wise to review collective bargaining agreements once a decision is made by the Supreme Court, particularly what agreements say about changing clothes and about what is compensable.

Smiricky also stressed the importance of a consistent definition for "clothes." "We need a uniform standard; it can't depend on the particular facts,'' she said. "When employers refer to ‘changing clothes,' it should be clear what they mean." Smiricky noted that the court was not convinced that any item worn to protect against dangers in the workplace was not "clothes," quoting Justice Antonin Scalia calling the distinction between clothing and protective clothing both "odd" and "peculiar."