SEATTLE - Should employers have to pay workers for time spent changing into and out of required protective gear before and after work? That’s the issue UW Law Professor Eric Schnapper convinced the U.S. Supreme Court to take up when the justices granted Schnapper’s petition for certiorari Feb. 19.
The case, Sandifer v. U.S. Steel Corp. -- which Schnapper will argue before the justices in October and probably will be decided next year -- could significantly affect regular and overtime pay for tens of thousands of unionized U.S. steelworkers and other types of workers who have to wear safety clothing and gear on the job. Non-unionized workers in the meat- and poultry-processing industries also could be impacted. The Obama administration filed an amicus brief in the lower courts in support of the workers’ case.
Schnapper, who joined the UW Law faculty in 1995, is one of the leading appellate attorneys in the country representing workers in employment law cases. He’s argued 17 cases before the U.S. Supreme Court, and filed briefs in 70 more. In the 2010-2011 term alone, he won two Supreme Court cases dealing with employment retaliation and discrimination against workers, and last year he won another case. He handles all his cases on an unpaid, pro bono basis.
The steelworkers’ case turns, believe it or not, on how you define “clothes.” The justices agreed to decide what constitutes “changing clothes” under Section 203(o) of the federal Fair Labor Standards Act, which allows employers not to pay certain workers for time spent changing clothes.
About 800 current and former workers at U.S. Steel in Gary, Indiana sued in federal court in 2007, claiming the company violated the Act by failing to pay them for the time they spend putting on and taking off work clothes and traveling between the locker room and their work stations. Schnapper says this involves 1-4 hours per week, which would be paid at overtime rates. The steelworkers’ collective bargaining agreement did not require payment for clothes-changing or travel time.
The Act says employers are not required to pay certain workers for clothes-changing time but it doesn’t define the word clothes. Last May, the 7th U.S. Circuit Court of Appeals ruled in the case that “almost any English speaker” would say that what the steelworkers are required to wear meets the definition of clothes. So, the court said, U.S. Steel doesn’t have to pay for changing and travel time.
But Schnapper, the lead counsel in the Supreme Court appeal, and his co-counsel argued in their successful petition for review that the steelworkers’ protective work clothes go beyond what would normally be considered clothes -- including heavy fire-retardant jackets and pants, steel-toed boots, eye goggles, ear plugs, hard hats, and a flame-retardant hood, wristlets, and ankle spats designed to protect workers from molten metal.
They noted that some of the protective devices are so novel that U.S. Steel had to invent names for them, such as the “snood” and “wristlet,” and that they could no longer be described as clothes in the ordinary sense.
Schnapper and his team argued that the Supreme Court should hear the case because the 7th Circuit opinion conflicts with rulings by the 9th Circuit and also with a prior ruling by the Supreme Court. The 9th Circuit, which covers Washington and eight other western states, ruled that special protective gear different from typical clothing is not clothes under Section 203(o) of the Act. And the Supreme Court held that workers are entitled to compensation for travel time following the donning of safety equipment because putting on that equipment is a required “principal activity” for the workers.
This is the latest in a long line of workers’ rights cases for Schnapper, who started his career in civil rights law. His first appellate case was representing Bobby Seale, one of the “Chicago 7” defendants accused of inciting riots at the Democratic Party convention in Chicago in 1968. He served as assistant counsel for the NAACP Legal Defense and Educational Fund from 1969 to 1994 before coming to UW Law.
Schnapper says he handles employment cases in memory of his father, who grew up in an orphanage but went on to earn a good living and send his children to college. “I want to do what I can to help working men and women have the same opportunities that my father had,” Schnapper says.
As is his custom, the night before he argues the Sandifer case before the U.S. Supreme Court in October, he plans to have dinner with his client and co-counsel in Washington, D.C. As usual, he also will invite his client to attend the arguments. “I do this because it helps make the event a special experience for the clients, win or lose,” he says. “In a way the process may matter more than whatever money they might win.”
But, he points out, given the large number of workers and millions of dollars in overtime at stake in Sandifer, “that’s probably not true in this case.”