Case brought by Gary, Ind., steelworkers will test the difference between routine work clothes and protective gear


WASHINGTON — A lawyer representing 800 steelworkers was explaining Monday why they should be paid for time spent changing into protective gear at work when the subject suddenly turned to the South Pole.

If covering your skin to work in the heat or wearing a parka in the cold is just changing clothes and not compensable under a union contract, Supreme Court Justice Samuel Alito wanted to know, why should dressing for work at a Gary, Ind., steel plant be any different?

Sun and weather are "just the normal vicissitudes of life," not workplace hazards, said lawyer Eric Schnapper.

What about working in a freezer, Justice Sonia Sotomayor asked. Not as dangerous as a steel plant, the lawyer said. "Dangerous cold," he intoned, "is the South Pole."

"So you have to pay a worker who's in the South Pole overtime for putting on his parka?" Sotomayor asked.

"I lived in Chicago when it never got above zero for two weeks," Justice Antonin Scalia chimed in.

If by their questions the justices sounded skeptical — and from the ideological left to the far right, they sure did — it likely signals curtains for the steelworkers. And not the dressing-room variety.

The issue before the court Monday was whether donning and doffing protective gear is merely changing clothes, for which U.S. Steel doesn't pay. Even the steelworkers union has bargained away that right.

Schnapper, the workers' lawyer, argued that the time putting on and taking off flame-retardant pants, jackets, hoods, work gloves, Kevlar sleeves, leggings, hard hats, steel-pointed boots and other items should be paid at overtime rates. Not only is it time-consuming, he said, but the outfit doesn't fit the standard definition of "clothes."

Lawrence DiNardo, representing U.S. Steel, took the opposite tack — that donning almost all protective gear is just changing clothes and therefore OK for employers and unions to consider non-compensatory.

The Obama administration, while siding with the company, argued for a more complicated middle ground. Most gear is just clothing, said Anthony Yang, assistant to the solicitor general — but perhaps not heavy armor used in the meat-packing industry.

Armed with three different definitions of clothes, the justices struggled to find the type of clarity they will need for a ruling, expected in the next few months.

Justice Ruth Bader Ginsburg wondered about the differences between a steelworker, a baker and a doorman. "Why should there be a distinction in getting paid between the protective garb and something that you must wear on the job?" she asked.

Scalia noted that hunters (like himself) wear special trousers to protect against scrapes from briars, but they consider that to be clothing, not something else. "You're proposing a very odd definition of clothes," he told Schnapper.

And Chief Justice John Roberts said even thick blue jeans worn as protection against "grease and hot things and all" could be considered safety gear under the steelworkers' expansive argument.

With all the questions and differences and gray areas, Justice Elena Kagan wondered why the Department of Labor never has issued regulations laying down what constitutes clothes and what constitutes protective gear.

After an hour of debate, Scalia had a ready answer. "Too complicated is why," he said.

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