Supreme Court to determine what "clothes" are under the FLSA.

February 20, 2013
By Eric B. Meyer on February 20, 2013 7:00 AM | | Comments

Korrektionsschutzbrille FrontansichtWith a title like that, this post could only arouse the interest of an employment lawyer. 

But, all of y'all should pay attention.

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Putting on and taking off (or, in legalese, "donning and doffing") protective clothing is considered a principal activity. However, the FLSA expressly provides that employees don't get paid for time spent "changing clothes" if a union contract says so.

The question that the Supreme Court must answer now, in this case, is what the heck are "clothes" under the FLSA?

  • Four circuits hold that "clothes" includes anything that can be worn on the person, even "accessories." Ah yes, clothes.

  • Another circuit has ruled that "special protective gear different in kind from typical clothing" is not clothing. Clothes?

  • And yet another circuit held that "clothes" does not include earplugs or safety glasses. Nice clothes, but no "clothes."

In any event, sometime later this year, maybe we'll get an answer to this question. 

For those of you in a unionized environment, you'll want to tune in to make sure to get this right to avoid violating the Fair Labor Standards Act.