Today’s oral argument before the United States Supreme Court (SCOTUS) in Sandifer v. U.S. Steel yielded largely what was expected. SCOTUS – and the parties – barely touched upon the issue of the Department of Labor (DOL)’s shifting policy on what constitutes changing clothes under the Fair Labor Standards Act (FLSA), and focused their attention on the substantive issue of the meaning of “changing clothes.” Argument may have given the Justices little clarity and may have given them more reason to wish they had heard argument on when they should defer to an agency’s position in amicus curiae briefs.
A preview post suggested that the issue of the DOL’s shifting policy positions and whether any deference was due would sleep – and it largely did, with a few small snuffles. The oral argument lesson may be this: when the SCOTUS tells counsel what to argue, argue that alone and let sleeping dogs lie.
Petitioner summarized his argument in few opening words – a wise approach:
We agree with the government that not everything an individual wears is clothes. We disagree with the government as to the appropriate standard for distinguishing things that are and are not clothes under Section 203(o) [of the FLSA].
Petitioner luxuriated in the breadth of illustration – ranging from toupees to quarterbacks, but then took the point not argued:
The – the company’s account of this is that everything that you wear to do your job is – is clothes and we think that’s just not consistent with ordinary language. And although the government’s views have, to some extent, evolved over time in all of this, they’ve always taken the position that not everything you wear are clothes. Even in its – in the 2002 opinion letter, they drew the line at tools and scabbards. And so even though you could be wearing those things, those are not clothes.
Petitioner appears to seek to strike the balance on “purpose” of the clothing that “items that are designed and worn to protect from a workplace hazard” are compensable protective equipment. But, as Justice Scalia pressed, that could include the ordinary workplace hazard of working in the sun, or as Justice Sotomayor pressed, working in a freezer. Petitioner was at pains to explain the ordinary from the extraordinary. And from this pain, SCOTUS delved into the FLSA, Portal-to-Portal, and collective bargaining ramifications, returning not a note to the DOL positions.
Respondent fared a little better by seeking affirmance by reference to the actual collective bargaining situation: that the union can explicitly or implicitly agree to exclude the time, and counsel argued that to be the case here. But respondent could not escape the temptation:
The Department of Labor said perhaps some clothes changing is not preliminary or postliminary. Perhaps it is a principal activity. They started the discussion around clothes changing, but the industrial practice that was being debated was this beginning-of-the-day activity, the locker room activity of getting yourself invested in the outfit you need to wear to be ready for work.
Illustration, however, was also too tempting, and respondent found the equipment side a little easier by referring to the chain mail shirts worn in meat packing plants (fortunately, counsel did not mention chain mail gloves (those knives are sharp)).
The Department of Justice (DOJ)’s Assistant Solicitor General, on behalf of the United States not merely DOL, posited the clearest standard for the statutory test:
We only get to the question of Section 3(o) when a preliminary activity is deemed to be so integral and indispensable to the primary work that itself is primary work and therefore would be compensable.
Whether this now constitutes the DOL interpretation might again shift, but having enunciated a position on behalf of the United States (and one not only different from the last DOL amicus brief, but supporting the opposite side), DOL would be at great pain to take another position.
But the Assistant Solicitor General also was tempted to illustration of the meat packer’s chain mail gloves and gauntlets, as well as a rigid belly guard, which must be sterilized before entering the plant. What the Assistant Solicitor General did do was avoid that which SCOTUS stated it did not wish to hear, having already eschewed the issue of deference to DOL’s amicus briefs and opinion letters under Auer v. Robbins and the Administrative Procedure Act (APA).
In sum, the argument may have provided SCOTUS little help in the way of a general rule or even general principles, and SCOTUS may wish that it had heard that sleeping dog of whether it should defer to the DOL’s changing position on changing clothes.