* Steel workers want pay for donning, doffing protectivegear
* U.S. Steel says wearable items involved are just clothes
* High Court justices struggle to define clear difference
* U.S. Labor Department guidance has varied over the years
By Amanda Becker
Nov 4 (Reuters) - Steel workers who do their jobs wearingflame-retardant gear tried to convince the U.S. Supreme Court onMonday that they should be paid for the time they spend "donningand doffing" such items before and after their shifts.
In a case that could effect unionized workers in poultryprocessing, meat packing and other sectors, roughly 800 currentand former workers at the United States Steel Corp plant inGary, Indiana, are seeking the extra pay.
A crucial point in the case is the difference between"clothes" and "protective gear."
In high court arguments, the nine justices struggled toclearly differentiate between the two - a task that the U.S.Labor Department has only made harder over the years.
The distinction is important because unionized employees arenot entitled to pay for the time it takes to change clothesbefore and after each shift if their union and their employerhave agreed to this by custom or agreement.
Under the law, workers do have to be paid for the time ittakes to put on and take off essential protective workplace gearthat is not "clothes," regardless of what their contract says.
The U.S. Steel workers say that flame-retardant jackets andpants, work gloves, wristlets, hard hats and other items theyhave to wear are "personal protective equipment," not clothes.
U.S. Steel disagrees, saying any wearable item is clothes.As a result, the company says, it should not have to payunionized employees for "donning and doffing."
The court seemed to approach the case with the big picturein mind, said Jessica Schauer Lieberman, a lawyer at SeyfarthShaw, who attended the hearing but was not involved in the case.
"The justices were clearly looking to make a broad rule.They weren't looking to treat this as a narrow case where theyjust decide the specific items worn by the plaintiffs at theU.S. Steel plant," she said afterward.
A decision from the court is expected by late June 2014,when the court's current term ends.
JUSTICES WEIGH IN
Conservative Justice Antonin Scalia told Lawrence DiNardo,the attorney representing U.S. Steel, that the company'sinterpretation of the law is too broad.
"The word of the statute is 'clothes,'" Scalia said duringthe arguments. "And nobody would consider eyeglasses or awristwatch or some of this other specialized equipment to beclothes. I mean, the word is what it is."
Justice Sonia Sotomayor, a liberal, told Eric Schnapper, theattorney representing the workers, that while the company'sdefinition "might go too far," she had "a problem with thingsthat look like clothes."
Schauer Lieberman said the justices appeared to be skepticalof the plaintiffs' argument "that any item that is intended toprotect you from a workplace hazard is excluded from clothing,but I think that they were also having trouble with what theright rule would be in its place."
Justice Elena Kagan questioned why the court was being askedto sort out the issue, instead of the Labor Department, whichhas in the past issued conflicting guidance. "It seems thequintessential question of statutory interpretation to which wewould normally defer to the agency," Kagan said.
Scalia countered: "Too complicated is why."
MIXED MESSAGES FROM LABOR DEPT
The U.S. Steel case came from Chicago's 7th U.S. CircuitCourt of Appeals, which took note of the Labor Department'sconflicting stances on workplace clothing. The 7th Circuitconcluded that the items donned by the U.S. Steel workers werenot clothes, but safety gear.
During the Clinton administration, the department's positionwas that protective equipment such as hats, boots and gloveswere not clothes. Then during the Bush administration, a 2002Labor Department letter stated that such gear actually wasclothing. This changed again in 2010, under President BarackObama, when the 2002 letter was revoked, reverting the officialposition so the items were viewed again as protective gear.
"It would be a considerable paradox if, before 2001, theplaintiffs would win because the president was a Democrat;between 2001 and 2009 the defendant would win because thepresident was a Republican; and in 2012 the plaintiffs would winbecause the president is again a Democrat," 7th Circuit JudgeRichard Posner wrote.
The 7th Circuit panel concluded that, even though some ofthe items donned by U.S. Steel workers were not clothes, it tookthe workers so little time to pull them on and off that theywere not entitled to compensation.
Narrowing the definition of "clothes" could be costly to thegrocery industry, another sector that could be affected, LittlerMendelson attorney Tammy McCutchen said in a friend-of-the-courtbrief filed with the court on behalf of the GroceryManufacturers Association.
If that industry's 2.5 million workers were entitled to backpay of just 10 minutes a day each, the cost to employers wouldbe $1.6 million for every thousand affected employees.
"It doesn't sound like much, but it adds up really quick,"McCutchen told Reuters.
McCutchen, while at the Labor Department, signed the 2002letter during the Bush administration that revised the agency'sdefinition of protective gear versus clothing.
Shares in U.S. Steel closed up 4.4 percent at $26.91 each inmoderately bullish New York Stock Exchange trading.
The case is Sandifer v. United States Steel Corporation,U.S. Supreme Court, No. 12-417.
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- Justice Antonin Scalia