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Supreme Court Rejects PPE Pay Pitch

Tuesday, February 4, 2014

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Putting on safety glasses, earplugs and/or a respirator is not such a time eater on the job that workers should be paid extra for it, the U.S. Supreme Court has told disappointed steelworkers.

In a rare unanimous ruling released Jan. 27, the high court sided with U.S. Steel in a collection case by workers seeking back pay for time spent "donning and doffing" Personal Protective Equipment that the company requires at its steel plants.

OSHA PPE
Photos: OSHA

At issue was whether the gear in question could be considered "clothes." Most of it could, the court said.

In Sandifer et al v. United States Steel Corp., Clifton Sandifer and co-workers at the company's Gary Works subsidiary in Indiana claimed that they spent up to two hours getting ready for work—time that the workers said should be compensated under the Fair Labor Standards Act of 1938.

Gear v. Clothes

The workers contended that putting on protective gear is not the same as "changing clothes" and should be a separately compensated activity.

The workers pinned their case on a 1949 amendment to the FLSA that allowed that some instances of changing clothes and washing before and after work (at mine portals, for example) consumed enough unpaid time that the issue could be part of a collective bargaining agreement.

In the U.S. Steel case, however, the justices affirmed all of the lower-court rulings that viewed donning PPE and clean-up as an integral and brief part of the workers' day.

"[It] is evident that the donning and doffing in this case qualifies as 'changing clothes' under §203(o)," said the ruling, written by Justice Antonin Scalia.

Toupees and Scuba Gear

In the first place, Scalia said, "[o]f the 12 [PPE] items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of 'clothes.'"

OSHA PPE

Safety glasses and respirators are not clothing, but they require little time to put on, Justice Scalia wrote.

(The other items were a flame-retardant jacket, pair of pants, a hood, a hardhat, a snood, wristlets, work globes, leggings and metatarsal boots.)

Second, rather than splitting hairs over whether, say, earplugs are clothes and the time spent to insert earplugs should be considered separately from putting on other items, Scalia said, "A more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.'"

The case was argued before the court on Nov. 4 in a spirited session that included discussion of whether clothing included earrings, necklaces, parkas, scabbards, scuba gear, a suit of armour and even toupees.

("I resent that," Scalia jibed after the toupee reference.)

Reactions

U.S. Steel welcomed the decision. “We are pleased that the Supreme Court has unanimously ruled in our favor that the brief amount of time it takes to put on and remove protective clothing is not part of the paid workday under the Fair Labor Standards Act,” the company said in a statement.

OSHA PPE

Many industries filed briefs in support of U.S. Steel. The plaintiffs' lawyer predicted that some would face the same issue.

“For many decades, U.S. Steel has appropriately and constructively addressed these matters in our collective bargaining process and this decision reaffirms the validity of that approach.”

Eric Schnapper, the plaintiffs' lawyer, predicted that the same debate would now shift to other industries.

"The fighting will go on," he told Reuters.

   

Tagged categories: Health and safety; Laws and litigation; Personal protective equipment; Respirators; Steel; Workers

Comment from Eric Rosenthal, (2/4/2014, 1:11 AM)

Rest assured this was a union brainstorm


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