In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1821, 10-1866

CLIFTON SANDIFER, et al.,

Plaintiffs-Appellees/

Cross-Appellants,

v.

UNITED STATES STEEL CORPORATION,

Defendant-Appellant/

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:07-cv-00443-RLM-PRC—Robert L. Miller, Jr., Judge.

ARGUED FEBRUARY 15, 2012—DECIDED MAY 8, 2012

Before POSNER, FLAUM, and MANION, Circuit Judges.

POSNER, Circuit Judge. These appeals arise out of a class

action (technically a “collective action,” as it is brought

pursuant to 29 U.S.C. § 216(b), a part of the Fair Labor

Standards Act of 1938, 29 U.S.C. §§ 201 et seq., rather

than pursuant to Fed. R. Civ. P. 23) on behalf of 800

former and current hourly workers at U.S. Steel’s steel
2 Nos. 10-1821, 10-1866

works in Gary, Indiana. The plaintiffs argue that U.S. Steel

has violated the Act by failing to compensate them for

the time they spend in putting on and taking off their

work clothes in a locker room at the plant (“clotheschanging time”) and in walking from the locker room

to their work stations, and back again at the end of the

day (“travel time”). The collective bargaining agreement

between U.S. Steel and the steelworkers union does

not require compensation for such time, and apparently

none of the previous collective bargaining agreements

between U.S. Steel and the union since 1947, nine years

after the FLSA was enacted, required it either. But the

plaintiffs argue that the Act itself requires compensation; and if it does, it overrides any contrary contractual

provision. Barrentine v. Arkansas-Best Freight System, Inc.,

450 U.S. 728, 740-41 (1981).

The district judge ruled that the Fair Labor Standards

Act does not require that the clothes-changing time in

this case be compensated, but that the Act may require

that the travel time be compensated and he therefore

refused to dismiss the suit. But he certified the issue of

the compensability of the travel time for an interlocutory appeal under 28 U.S.C. § 1292(b) by U.S. Steel,

and we accepted the appeal.

The plaintiffs have cross-appealed. They want to challenge the district judge’s ruling that clothes-changing

time is not compensable. U.S. Steel points out that the

cross-appeal doesn’t satisfy the procedural standard for

an appeal under section 1292(b) because the plaintiffs

did not ask either the district judge or us for leave to
Nos. 10-1821, 10-1866 3

appeal. So we hereby dismiss the cross-appeal. But the

dismissal has no practical significance. For if the ruling

on clothes-changing time was erroneous, the plaintiffs’

case for compensation for travel time is, as we’ll see,

irrefutable. And so they can certainly argue, in opposition

to the appeal, that the ruling was indeed erroneous.

So on to the merits—and it will simplify exposition to

start with the clothing issue. The Fair Labor Standards

Act requires that workers be paid at least the federal

minimum wage for all hours worked, and time and a

half for hours worked over 40 hours in a week. But the

statute does not define “work,” a critical hole that the

courts must fill—critical because the Act covers an immense variety of kinds of workplace, and by expanding

the meaning of “work” courts could overrule agreements negotiated between labor and management and

create unforeseen retroactive liabilities. To cut back on

Supreme Court decisions believed to have done this,

Congress in 1947 passed the Portal-to-Portal Act, 29

U.S.C. §§ 251 et seq., and two years later, in the spirit of

that Act, added section 3(o) to the Fair Labor Standards

Act, 29 U.S.C. § 203(o). That section excludes, from

the time during which an employee is entitled to be

compensated at the minimum hourly wage (or, if it is

overtime work, at 150 percent of his hourly wage),

“any time spent in changing clothes or washing at the

beginning or end of each workday which was excluded

from measured working time . . . by the express terms of

or by custom or practice under a bona fide collectivebargaining agreement applicable to the particular employee.” Id. (“Washing time” is not at issue in this case,
4 Nos. 10-1821, 10-1866

however.) The plaintiffs argue that the section is inapplicable because what the district court deemed “clothes”

are not clothes within the meaning of the Act, but

rather safety equipment. The statute does not define

“clothes.”

The alleged clothes consist of flame-retardant pants

and jacket, work gloves, metatarsal boots (work boots

containing steel or other strong material to protect the

toes and instep), a hard hat, safety glasses, ear plugs,

and a “snood” (a hood that covers the top of the head,

the chin, and the neck). These work clothes are in the

record, and since a picture is worth a thousand words, here

is a photograph of a man modeling the clothes:
Nos. 10-1821, 10-1866 5

The glasses and ear plugs are not clothing in the

ordinary sense but the hard hat might be regarded as an

article of clothing, and in any event putting on the
6 Nos. 10-1821, 10-1866

glasses and the hard hat and putting in the ear plugs is

a matter of seconds and hence not compensable, because

de minimis. “Split-second absurdities are not justified by

the actualities of working conditions or by the policy of

the Fair Labor Standards Act. It is only when an employee

is required to give up a substantial measure of his time

and effort that compensable working time is involved.”

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946);

see also Frank v. Wilson & Co., 172 F.2d 712, 715-16

(7th Cir. 1949); Perez v. Mountaire Farms, Inc., 650 F.3d 350,

372-75 (4th Cir. 2011); id. at 376-81 (concurring opinion); Alvarez v. IBP, Inc., 339 F.3d 894, 903-04 (9th Cir. 2003),

affirmed under the name of IBP, Inc. v. Alvarez, 546 U.S. 21

(2005).

The rest of the outfit certainly seems to be clothing, but

the plaintiffs argue, no, it’s “personal protective equipment.” Actually it’s both. Protection—against sun, cold,

wind, blisters, stains, insect bites, and being spotted

by animals that one is hunting—is a common function

of clothing, and an especially common function of work

clothes worn by factory workers. It would be absurd

to exclude all work clothes that have a protective

function from section 203(o), and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms. Remember that the section covers not

only clothes-changing time but also washing-up time,

and workers who wear work clothes for self-protection

in a dangerous or noxious work environment are far

more likely to require significant time for washing up

after work than a waiter.
Nos. 10-1821, 10-1866 7

It’s true that not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or

his heart on his sleeve, but this just shows that “wear” is a

word of many meanings. Almost any English speaker

would say that the model in our photo is wearing work

clothes. Given the subject matter of the Fair Labor Standards Act it would be beyond odd to say that the word

“clothes” in section 203(o) excludes work clothes, especially since the section is about changing into and out

of clothes at the beginning and end of the workday. Not

all workers wear work clothes, but workers who change

at the beginning and end of the workday are changing

into and out of work clothes, and if they are governed

by a collective bargaining agreement that makes such

changing noncompensable the agreement must apply

to work clothes, for otherwise the noncompensation

provision would have virtually no applications.

The fact that the clothing exclusion is operative only

if it is agreed to in collective bargaining implies, moreover, that workers are compensated for the time they

spend changing into work clothes, and washing up and

changing back. “Section 203(o) permits unions and management to trade off the number of compensable

hours against the wage rate; the workers get more, per

hour, in exchange for agreeing to exclude some time

from the base.” Spoerle v. Kraft Foods Global, Inc., 614

F.3d 427, 428 (7th Cir. 2010). The steelworkers would not

have given up their statutory entitlement to time and a

half for overtime, when changing clothes or traveling

to and from their work stations, without receiving something in return; and they will get to keep that compensa-
8 Nos. 10-1821, 10-1866

tion until the next collective bargaining agreement

goes into effect, in addition to the back pay they’re demanding, if they convince us that “clothes” don’t include

the work clothes worn by steelworkers at the Gary plant.

From a worker’s standpoint any time spent on the

factory grounds is time “at work” in the sense of time

away from home or some other place where he might

prefer to be if he weren’t at work. But it is not time

during which he is making steel, and so it is not time

for which the company will willingly pay. If the

workers have a legal right to be paid for that time, the

company will be less willing to pay them a high wage

for the time during which they are making steel; it

will push hard to reduce the hourly wage so that its

overall labor costs do not rise. The steel industry is international and highly competitive, and unions temper

their wage demands to avoid killing the goose that lays

the golden eggs. They don’t want the American steel

industry to go where so much American manufacturing

has gone in recent years—abroad. The plaintiffs are

adverse to their union, to the interests of other

steelworkers, and to their own long-term interests.

The plaintiffs cite language from a number of cases

to the effect that “exemptions” from the Fair Labor Standards Act are to be construed narrowly. E.g., Moreau

v. Klevenhagen, 508 U.S. 22, 33 (1993); A.H. Phillips, Inc. v.

Walling, 324 U.S. 490, 493 (1945). We expressed skepticism

in Yi v. Sterling Collision Centers, Inc., 480 F.3d 505,

508 (7th Cir. 2007), asking rhetorically: “Why should one

provision in a statute take precedence over another?”
Nos. 10-1821, 10-1866 9

No matter; section 203(o) does not create an exemption. The Fair Labor Standards Act has a section

entitled “Exemptions”; it is 29 U.S.C. § 213; the exclusion

of changing time is not in that section.

This is more than a quibble. There’s a difference

between exclusion and exemption, or, equivalently,

between scope and coverage. The FLSA does not apply

to American workers abroad. Or to soldiers. Or to

certain people who volunteer for particular kinds of

charitable work. These exclusions help to define the

scope of the Act. That scope is defined in 29 U.S.C.

§ 203, which is entitled “Definitions” and is where we

find the provision concerning compensation for clotheschanging time, rather than in section 213, where instead

we find exemptions for certain types of worker, such

as certain agricultural workers. Section 203(o) creates

an exclusion rather than an exemption, as all but one

appellate decision to address the issue has held. See

Salazar v. Butterball, LLC, 644 F.3d 1130, 1138 (10th Cir.

2011); Franklin v. Kellogg Co., 619 F.3d 604, 611-12 (6th

Cir. 2010); Allen v. McWane, Inc., 593 F.3d 449, 458 (5th Cir.

2010); Anderson v. Cagle’s, Inc., 488 F.3d 945, 957-

58 (11th Cir. 2007).

The outlier is Alvarez v. IBP, Inc., supra, 339 F.3d at 905

(the affirmance of the decision by the Supreme Court

was on other grounds). But as the Anderson decision

points out, 488 F.3d at 957, the Ninth Circuit seemed

to have forgotten that subsection (o) of section 203

is not found in the section of the FLSA that creates exemptions. The Ninth Circuit also thought it important
10 Nos. 10-1821, 10-1866

that protective clothing (the workers in question were

employed in a meat-packing plant and were required

to wear protective work clothes similar to those the

steelworkers wear, see 339 F.3d at 898 n. 2) is “different in kind from typical clothing,” which the court

instanced by “warm clothing.” Id. at 905. But this was

just to say that work clothes are not street clothes.

That can’t be the end of the analysis. Since workers very

rarely change at work from street clothes into street

clothes, section 203(o) would as we said be virtually

empty if the Ninth Circuit were right.

So the district judge was correct to rule that, given

the terms of the collective bargaining agreement, U.S.

Steel doesn’t have to compensate its workers for the

time they spend changing into and out of their work

clothes. We add that the ruling accords with all but one

reported appellate decision, and again the outlier is

the Ninth Circuit’s decision in Alvarez. See Salazar v.

Butterball, LLC, supra, 644 F.3d at 1136-41; Franklin v. Kellogg

Co., supra, 619 F.3d at 610-16; Sepulveda v. Allen Family

Foods, Inc., 591 F.3d 209, 214-18 (4th Cir. 2009); Anderson v.

Cagle’s, Inc., supra, 488 F.3d 945, 955-58 (11th Cir. 2007);

Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir. 2001)

(per curiam). And in Spoerle v. Kraft Foods Global, Inc., supra,

614 F.3d at 428, we adopted Sepulveda’s reasoning and

conclusion without undertaking a separate analysis.

But the judge’s ruling that the clothes-changing time

isn’t compensable makes his ruling that the company

must compensate the plaintiffs for travel time puzzling

and paradoxical (which is why, as we said earlier, the
Nos. 10-1821, 10-1866 11

plaintiffs were entitled to argue against the judge’s

ruling on clothes-changing time without having to cross

appeal). The Portal-to-Portal Act exempts from the minimum wage and overtime provisions of the Fair Labor

Standards Act “walking, riding, or traveling to and

from the actual place of performance of the principal

activity or activities which such employee is employed

to perform.” 29 U.S.C. § 254(a). Had the clotheschanging time in this case not been rendered noncompensable pursuant to section 203(o), it would have been

a principal activity. But unless changing into and

changing out of work clothes are principal activities

even when made noncompensable pursuant to section

203(o), the exemption in section 254(a) applies, and

U.S. Steel need not compensate for travel time.

The judge thought that clothes-changing time could

be a “principal activity” even though the employer and

the union had decided, as he agreed they were entitled

to do, that changing time is not work time and need not

be compensated. If it is not work time—the workers

aren’t being paid and their union has agreed to their not

being paid—how can it be one of the “principal . . . activities which [the] employee is employed to perform”? He

is required to wear work clothes, and for that matter

he is required to show up for work. But he is not

employed to show up or employed to change clothes.

Not all requirements imposed on employees constitute

employment. An employee may be required to call in

when he is sick, but unless he is on paid sick leave he

is not paid for the time it takes to place the call.
12 Nos. 10-1821, 10-1866

In Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956), the

Supreme Court held that the term “principal activity

or activities” included all activities that are an “integral

and indispensable part of the principal activities” for

which the employee is employed, and the Court

reaffirmed that ruling in IBP, Inc. v. Alvarez, supra, 546

U.S. at 37. If an employer requires his employees to

don and doff work clothes at the workplace, then

donning and doffing are an integral and indispensable

part of the workers’ main activity (in this case, making

steel) and therefore a principal activity. Steiner v. Mitchell,

supra, 350 U.S. at 256. Alvarez held that when this is

the case the time the worker spends walking from the

locker room to the worksite is not time walking to and

from a principal activity, but instead time walking

between principal activities, and so is not within the exemption created by the Portal-to-Portal Act, just as if

the worker were a millwright who inspects, repairs,

replaces, installs, adjusts, and maintains mechanical

equipment in different parts of the steel mill and to do

these tasks must walk from one piece of equipment to

another. See IBP, Inc. v. Alvarez, supra, 546 U.S. at 37.

But the Court in Steiner thought it significant that

there was no collective bargaining agreement that made

clothes-changing time noncompensable. The Court remarked “the clear implication” of section 203(o) “that

clothes changing and washing, which are otherwise a

part of the principal activity, may be expressly excluded

from coverage by agreement.” Steiner v. Mitchell, supra,

350 U.S. at 255 (emphasis added). That is what happened

in this case. Section 203(o) permits the parties to a col-
Nos. 10-1821, 10-1866 13

lective bargaining agreement to reclassify changing time

as nonworking time, and they did so, agreeing that

the workday would not start when the workers changed

their clothes; it would start when they arrived at their

work site. If clothes-changing time is lawfully not compensated, we can’t see how it could be thought a principal

employment activity, and so section 254(a) exempts the

travel time in this case.

As with clothes-changing time, workers would not

benefit in the long run from a rule that travel time must

be compensated. It would mean that in an 8-hour shift

(the hourly workers at the Gary steel works work 8-hour

shifts), the employer would not obtain eight hours of

productive work; he would be paying the same wage

and getting less work in return (or getting the same

work but paying time and half overtime for the workers’ travel time), and so the wage would have to

fall the next time the collective bargaining agreement

was renegotiated unless the laws of economics were

repealed. Employers would also be moved to limit

the time they allowed their workers for travel (which

would require more supervisors and cause disputes) and

perhaps to reduce travel time further by moving the

locker rooms closer to the work stations. These measures

would spell higher costs for the employer—higher labor

costs. The higher such costs are, the lower the hourly

wage will be. And so the higher costs would be borne

ultimately by the workers.

Employers could emasculate the plaintiffs’ interpretation of the “primary activity” provision by placing the
14 Nos. 10-1821, 10-1866

locker rooms in the work stations, for then there would

be no post-primary-activity travel time. There is something amiss with an interpretation that implies that the

location of the locker room, rather than the amount

of time involved in walking to one’s work station, determines one’s statutory entitlement to compensation. Suppose it is 100 yards from the plant entrance to the

locker room and another 100 yards to the work station.

On the plaintiffs’ view, traversing the second 100 yards

is compensable, though traversing the first 100 yards is

not, but if the locker room were adjacent to the work

station none of the workers’ travel time would be compensable even though the amount of walking they’d

be doing would be identical. What sense could that make?

It was concern with the disruption of the workplace

caused by forcing employers to compensate for travel

time and clothes-changing time, as the Supreme Court

held they must do in Anderson v. Mt. Clemens Pottery Co.,

supra, 328 U.S. at 690-92; Jewell Ridge Coal Corp. v. Local No.

6167, United Mine Workers, 325 U.S. 161, 163-64 (1945); and

Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,

321 U.S. 590, 598 (1944), that drove the enactment of

sections 203(o) and 254(a). IBP, Inc. v. Alvarez, supra, 546

U.S. at 25-26; Sepulveda v. Allen Family Foods, Inc., supra, 591

F.3d at 217; Anderson v. Cagle’s, Inc., supra, 488 F.3d at 957-

58; Adams v. United States, 471 F.3d 1321, 1324-25 (Fed. Cir.

2006); Thomas v. Howard University Hospital, 39 F.3d 370,

371-72 (D.C. Cir. 1994). “The FLSA . . . does not define the

terms ‘work’ or ‘workweek.’ The Supreme Court defined

these terms ‘broadly’ in its early FLSA cases . . . defined

them so broadly, in fact, that Congress found it necessary
Nos. 10-1821, 10-1866 15

to amend the statute to restore some sanctity to private

employment contracts.” Sepulveda v. Allen Family Foods,

Inc., supra, 591 F.3d at 217.

This history provides guidance to the meaning of

“clothes” and “principal activity” by showing that Congress was trying to eliminate the disruptions that the

Court’s interpretation of the Fair Labor Standards Act

had caused, and to allow the determination of what is

compensable work in borderline cases (is changing

into work clothes “work”? is walking from a locker room

to a work station “work”?) to be settled by negotiation

between labor and management. As the preamble to

the Portal-to-Portal Act states, rather dramatically,

The Congress finds that the Fair Labor Standards

Act of 1938 . . . has been interpreted judicially in

disregard of long-established customs, practices, and

contracts between employers and employees, thereby

creating wholly unexpected liabilities, immense in

amount and retroactive in operation, upon employers

with the results that, if said Act as so interpreted

or claims arising under such interpretations were

permitted to stand, (1) the payment of such

liabilities would bring about financial ruin of many

employers and seriously impair the capital resources

of many others, thereby resulting in the reduction

of industrial operations, halting of expansion and

development, curtailing employment, and the

earning power of employees; (2) the credit of many

employers would be seriously impaired; (3) there

would be created both an extended and continuous
16 Nos. 10-1821, 10-1866

uncertainty on the part of industry, both employer

and employee, as to the financial condition of productive establishments and a gross inequality of

competitive conditions between employers and between industries; (4) employees would receive

windfall payments, including liquidated damages, of

sums for activities performed by them without any

expectation of reward beyond that included in

their agreed rates of pay; (5) there would occur the

promotion of increasing demands for payment to

employees for engaging in activities no compensation for which had been contemplated by either

the employer or employee at the time they were

engaged in; [and] (6) voluntary collective bargaining

would be interfered with and industrial disputes

between employees and employers and between

employees and employees would be created....

29 U.S.C. § 251(a).

Only one previous appellate case has decided whether

noncompensable changing time can be work time for

purposes of the travel-time exemption. In Franklin v.

Kellogg Co., 619 F.3d 604, 618-19 (6th Cir. 2010), as in

this case, the employer, invoking section 203(o), did

not pay its workers for time spent changing into

work clothes. The court concluded nevertheless that

changing time, because required by the employer, was a

“principal activity.” This seems clearly wrong, for the

reasons we’ve explained (and the Franklin opinion

offers only a conclusion, not reasons). But because by

disagreeing with Franklin we would create an inter-
Nos. 10-1821, 10-1866 17

circuit conflict, we have circulated this opinion to the

full court in advance of publication. 7th Cir. R. 40(e).

None of the judges in regular active service voted to

hear the case en banc. (Judge Williams did not participate in the Rule 40(e) consideration of the matter.)

The Department of Labor has participated as an

amicus curiae in this appeal on the side of the plaintiffs,

and we end by considering what weight we should give

its views. During the Clinton Administration the Department took a narrow view of the meaning of the term

“clothes” for purposes of determining whether time

spent in changing in and out of work clothes could be

excluded under section 203(o) from the FLSA’s minimum

wage and overtime provisions. See U.S. Dep’t of Labor,

Opinion Letter, 2001 WL 58864 (Jan. 15, 2001); Opinion

Letter, 1997 WL 998048 (Dec. 3, 1997). During the

Bush Administration the Department took a broad

view—broader than we take—of what “clothes” means

in the FLSA, and added that clothes-changing time excluded under section 203(o) could not be a “principal

activity” under the Portal-to-Portal Act. U.S. Dep’t of

Labor, Opinion Letter, 2007 WL 2066454 (May 14, 2007);

Opinion Letter, 2002 WL 33941766 (June 6, 2002). After

the change in administrations in 2009 the Department

reverted to the Clinton Administration’s position on

“changing clothes” and also rejected the Bush Administration’s position on “principal activity.” U.S. Dep’t

of Labor, Administrator’s Interpretation No. 2010-2,

2010 WL 2468195 (June 16, 2010). Such oscillation is a

normal phenomenon of American politics. Democrats are

friendlier to unions than Republicans are, though we
18 Nos. 10-1821, 10-1866

cannot see how a decision in favor of the plaintiffs in

this case would help unions. (No union is a party to

this case or an amicus curiae.)

Naturally the Department of Labor does not acknowledge that its motive in switching sides was political;

that would be a crass admission in a brief or in oral argument, and unlikely to carry weight with the judges. The

Department says instead that it is right as a matter of

law and that the position the Department took in the

Bush years is wrong; it adds that since it enforces the

Fair Labor Standards Act its (current) position should

carry weight with us. But all the Department does to

demonstrate the “rightness” of its current position is

to echo the plaintiffs’ arguments. Nowhere in the Department’s brief is there a reference to any institutional

knowledge of labor markets possessed by the Department’s staff—or to anything indeed to which the

parties might not have complete access—that might

help the court to decide the case sensibly; and at the

oral argument the Department’s lawyer acknowledged

this void. All that the Department has contributed

to our deliberations, therefore, though it is not quite

nothing, is letting us know that it disagrees with the

position taken by the Bush Department of Labor; for if

it were silent, from which one might infer that it agreed

with that position, it would be inviting U.S. Steel to

argue that the Department of Labor had been consistent,

at least since 2001, and thus across Administrations

controlled by opposite political parties, in rejecting

the plaintiffs’ position.
Nos. 10-1821, 10-1866 19

It would be a considerable paradox if before 2001 the

plaintiffs would win because the President was a Democrat, between 2001 and 2009 the defendant would win

because the President was a Republican, and in 2012 the

plaintiffs would win because the President is again a

Democrat. That would make a travesty of the principle

of deference to interpretations of statutes by the

agencies responsible for enforcing them, INS v. CardozaFonseca, 480 U.S. 421, 446 n. 30 (1987), since that

principle is based on a belief either that agencies have

useful knowledge that can aid a court or that they are

delegates of Congress charged with interpreting and

applying their organic statutes consistently with legislative purpose. We are not surprised to discover that

courts of appeals that have reached varied conclusions

on the issues presented by this appeal have come

together in spurning, as Judge Wilkinson has put it, “the

gyrating agency letters on the subject.” Sepulveda v.

Allen Family Foods, Inc., supra, 591 F.3d at 216 n. 3; see

also Salazar v. Butterball, LLC, supra, 644 F.3d at 1139;

Franklin v. Kellogg Co., supra, 619 F.3d at 612-14; Alvarez

v. IBP, Inc., supra, 339 F.3d at 905 n. 9; contra, Anderson

v. Cagle’s, Inc., supra, 488 F.3d at 956-57.

We resolve the specific issue that we have been asked

to resolve in this interlocutory appeal in favor of U.S.

Steel. On the basis of that resolution, the suit has no

merit and should be dismissed by the district court.

5-8-12