The U.S. Supreme Court reopened what had appeared to be a largely settled issue on "hours worked" under the FLSA: the meaning of "changing clothes." The time employees spend changing clothes is not included in "hours worked" under the FLSA, where this time is excluded by the practice under or the express terms of a collective bargaining agreement. In Sandifer v. United States Steel Corporation, the Seventh Circuit interpreted this rule to mean that flame-retardant pants and jackets, metatarsal boots, work gloves, and snoods are "clothing."
The only circuit court that has disagreed is the Ninth Circuit in Alvarez v. IBP, Inc. Although the Seventh Circuit's conclusion in Sandifer is the result employers outside the Ninth Circuit have come to expect, the Supreme Court cast doubt on that expectation when it agreed to hear the employees' petition and examine the meaning of "changing clothes." Possibly, a majority of the Justices intend to use the opportunity to make the law in the Ninth Circuit consistent with the rest of the country. Employers whose collective bargaining agreements — either by express terms or by custom or practice — exclude time spent changing clothes from compensable hours worked should monitor Sandifer to ensure that they are prepared if the Supreme Court upends the definition of "changing clothes" on which employers in most of the country currently rely. Absent extensions, amicus briefs supporting the respondent will be due on May 13, 2013.
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