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Happy New Year! What's on Tap for the United States Supreme Court in 2014
By Kathi Chestnut on December 31, 2013 at 2:45 PM

2014cubes-smallWith 2013 at its close, let’s take a peek at two cases currently pending in the United States Supreme Court that will have implications for employers in 2014.

Sandifer v. U.S. Steel Corp.

On February 19, 2013, the United States Supreme Court granted certiorari to review a decision by the 7th Circuit Court of Appeals holding that time spent donning and doffing protective gear, as well as time spent traveling from the locker room to work stations, constituted “changing clothes” under the Fair Labor Standards Act (FLSA) §203(o), thus excluding the activities from being considered work time under the Collective Bargaining Agreement (CBA) between U.S. Steel and the United Steelworkers union. The briefing is complete and the Supreme Court held oral argument on November 4, 2013, so a decision should be forthcoming soon.

The question presented for the Supreme Court in Sandifer is what constitutes “changing clothes” under §203(o) of the FLSA. According to the Petitioners, who consist of approximately 800 current and former employees of U.S. Steel, the time spent donning and doffing safety gear and traveling to work stations takes several hours a week. Under the applicable CBA, this time is not compensated.

Under §203(o) of the FLSA, a CBA can exclude time spent changing clothes at the beginning and end of the day, which would otherwise be compensable time under the FLSA. The steelworkers claim, however, that the term “changing clothes” only encompasses changing from street clothes into work clothes – and does not include adding the safety gear they have to put over their street clothes – including fire retardant jackets, pants, and steel toed boots.

The decision has implications for employers because it will clarify what activities and items are covered under the “changing clothes” language in §203(o) of the FLSA, thus providing guidance to employers and labor unions for CBA negotiations.

NLRB v. Noel Canning Division of Noel Corp.

On June 24, 2013, the Supreme Court granted certiorari to review the decision by the D.C. Circuit Court we previously reported on back in March 2013 that held that President Obama’s recess appointments to the NLRB in 2012 were invalid. The briefing is complete, and the case is set for oral argument on January 13, 2014. And, interestingly, the Court has granted a request by Senate republicans to participate in oral argument.

The questions presented for the Court are: (1) Whether the President’s recess-appointment power is limited to recesses occurring between enumerated sessions, or whether the recess-appointment power can be exercised during a recess when the Senate is in session; (2) Whether the recess-appointment power can be exercised to fill vacancies existing at the time of the recess, or whether it is limited to vacancies that first occur during the recess; and (3) whether the President’s recess-appointment power can be exercised when the Senate is convening every three days in pro forma sessions.

The case has implications for employers because, in the event the Supreme Court determines that the recess appointments were an invalid exercise of the President’s recess-appointment power, decisions made by the NLRB during 2012 will be void.

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