Some 800 current and former Indiana steel workers went to court seeking pay for the time they had spent each day, first donning their protective gear for the production lines and later doffing it all before going home. They also wanted to be paid for the time they spent walking to and from the production floor.

What happened. Plaintiffs from the U.S. Steel plant in Gary argued before a federal district court judge that the Department of Labor (DOL) had opined in June 2010 that, under the Fair Labor Standards Act (FLSA), protective equipment—flame-retardant pants and jacket, work gloves, work boots, hard hat, safety glasses, ear plugs, and a hood—are not 'clothes.'

U.S. Steel countered that the issue was and always has been one of collective bargaining: Since 1947, the union's agreement with the company has specified that the donning and doffing and walking to and fro are not compensable. DOL, in fact, went one step further in its Administrator's Interpretation of the law: If donning protective gear is needed, then it's a 'principal activity' that begins a worker's time on the clock, so that walking to and from the line is compensable.

The judge ruled that FLSA does not require the steel workers to be paid for donning and doffing, but that it might deem it a principal activity, meaning workers must be paid for walking time. Both sides appealed to the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said. Appellate judges noted that the DOL opinion of June 2010 was different from past opinion letters in that it was more proactive. But they also noted that the agency's definition of clothes had changed with party changes in the White House—from a narrow definition during the Clinton and Obama administrations to a broader one during Bush's tenure. In fact, DOL had issued an opinion in 2007 directly opposed to the 2010 interpretation.

Noting that DOL had not provided helpful advice about how to interpret the law, judges ruled against the plaintiffs on both the donning and doffing and walking to and fro issues. They wrote, "Protection—against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting—is a common function of clothing." Protective they may be, judges said, but they are also clothes. Sandifer, et al. v. U.S. Steel, Nos. 10-1821 & -1866 (5/8/12).

Point to remember: Nonunion companies will need to consider carefully whether to compensate for donning and doffing and walking to and fro; FLSA here deals only with bargaining agreements. And, the 6th Circuit (KY, MI, OH, TN) recently ruled the other way on the walking to and fro issue.