U.S. Supreme Court

Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.

But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his

Raise your hand if you know what “Donning and Doffing” is?

To those that have raised your hand, you are most likely: a) an employment lawyer; b) a Scrabble nerd; or c) not being honest with yourself.

It’s just not a phrase anyone uses in real life — like a “snood” (I’ll get to the relevance of that term down below.)

But on Monday, the U.S. Supreme Court issued an important decision on the subject that will have a direct impact on when employers need to pay their employees for putting on (donning) and taking off (doffing) protective gear.

The case, Sandifer v. U.S. Steel, can be downloaded here.

History buffs will appreciate the decision for its lengthy discussion of the origins of modern day wage & hour law. But the basic gist is this: Many decades ago, wage & hour law developed a theory that “changing clothes” before and after a shift is not compensable working time.  The question remained – what about things like a hardhat? Or a special flame resistant jacket? Or safety goggles?

In other words, should an employee be able to get compensation for putting on and taking off protective gear? 

The court said it would first adopt the 1950s definition of “clothes” — namely “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  Jackets, pants, suits, but also protective clothing like a hardhat that is, after all, still a “hat”.

What’s excluded from that definition?  Things like tools and accessories. According to the court, “Many accessories—necklaces and knapsacks, for instance—are not ‘both designed and used to cover the body.’ Nor are tools ‘commonly regarded as articles of dress.’” Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.


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Readers of a certain vintage, will remember Gilda Radner’s character Emily Litella who often said “Never Mind”.  (If you’ve never heard of Gilda Ratner or this, then I’ll pause while you watch this classic video.)  Readers of a later vintage will think of Nirvana’s “Nevermind”. If you just want the dictionary definition, here

Last Friday, lawyers representing two government officials petitioned the U.S. Supreme Court to hear arguments over whether former a 2002 state decision to layoff only union personnel violated those employee’s constitutional rights.

Back in June 2013, you may recall that the Second Circuit ruled that such layoffs did violate the right of association.  I’ve

Busy week here.  So, it’s time to bring back a recurring post of “Quick Hits” of articles you may have missed along the way.  Here are some of my recent favorites:

It’s always a little tricky to determine exactly how lower courts will apply a rule of law that develops from a U.S. Supreme Court.

Take the case of University of Texas Southwestern Medical Center v. Nassar, decided in June, which held that a “but for” standard (i.e., that an employer would not have taken

In Tuesday’s The New York Times, an article (that, as of Monday evening was one of the lead pieces on the NYTimes.com website) argues that age discrimination continues to exist in society and that it is hitting the baby boomers particularly hard.  (Indeed, the article’s tag is “for-laid-off-older-workers-age-bias-is-pervasive”.)

I do not challenge the assertion