LL&V §F-J // Prof. Garet // Fall, 2013
Notes on the final exam essay question, The Suit (90 minutes)
I based the question on Sandifer v. United States Steel Corporation, 12-417,
which is awaiting decision in the United States Supreme Court. The facts of our case,
and information presented in the fact pattern about the Fair Labor Standards Act’s text
and legislative history as, track the statute – 29 U.S.C. §203(o) – and the briefs of the
parties and amici. Judge Posner wrote for the Seventh Circuit, below: 678 F.3d 590
(2012). The fact pattern’s prompts for economic analysis were based in part on Posner’s
opinion. To enable you to exercise your skills in interpreting and applying statutory
interpretation case law, the LL&V instructors added two fictitious cases: Logan (about
the circus acrobat) and Ameritza (about “Wolfgirl”).
Issue-framing and holding
Most answers did a fine job of issue-framing. Some answers framed X at a low
level of generality, along the following lines: Is time that steelworkers spend taking on
and off flame-retardant pants and jacket, work gloves, work boots, hard hat, ear plugs,
safety glasses, and snood [X] time spent “changing clothes” [Y2] within the meaning of
the FLSA? (The converse question is whether X counts as “work” [Y1] within the
meaning of the FLSA.) Framing X with particularity is advantageous in our case because
if ordinary language will be a major ground of decision, we might want to focus our
attention on differences between how we might describe inserting and removing earplugs
(least plausibly described as “changing clothes”) and putting on the pants and jacket
(more plausibly described as “changing clothes”). Some answers went on to hold that
while time spent putting on and taking off the jacket and pants is noncompensable time
spent “changing clothes,” time spent on the earplugs and safety glasses is compensable
“work.”
Some answers, equally plausibly, generalized X as time that industrial workers
spend putting on and taking off their company-owned and company-required safety gear.
This is plausible because an appellate court accepts responsibility for stating, in its
holding, a rule that not only decides the current case but also clarifies the law going
forward. As law clerk to a judge on the Twelfth Circuit, you want to help your judge
visualize a holding – a general rule of law – that not only fits the law sources but brings
them into clearer focus. So if you anticipate that general, recurrent features of the facts
are made relevant by the language and purposes of the FLSA and by horizontal
precedent, you want to build those features into your issue statement. For example, you
might build the general category of “safety gear” into your issue statement because both
legislative intent and horizontal precedent make that feature important.
Many answers did a fine job stating normative issues presented by our case. After
stating the statutory interpretation issue formally (as illustrated above or in other ways),
some answers added: “Our case also raises the normative issue: Should it matter, when
time is in a gray area that could be ‘work’ but could be ‘changing clothes,’ that the
applicable collective bargaining agreement has never called for that time to be
compensated?” Some of you stated the normative issue as “whether the employees are
trying to have their cake and eat it too, and if so, should the statute allow that?” There
are other equally good ways to state the case’s normative issues.
Though most answers did a fine job with issue-framing, there was a greater
variation in the extent to which answers responded to the prompt to “clearly state your
proposed holding(s).”
Analysis
Most answers did a fine job using dictionary definitions and ordinary language
analysis to develop the meaning of the statutory terms “work” and “changing clothes.”
Some answers squarely confronted one of the case’s main puzzles or problems. Given
what we’re told about legislative intent, apparently the Congress that enacted FLSA used
statutory language that at best imperfectly achieves the general intentions behind the
statute. Excluding time spent “changing clothes” from compensable work time is both
over-inclusive and under-inclusive in relation to the goal of compensating workers for
time spent on safety measures but not compensating them for time spent on garb that has
aesthetic or identification purposes. Though our inner Scalia urges us to follow ordinary
language meanings, some answers noticed that horizontal precedent complicates the
matter. On the one hand, Logan appeals to ordinary language when it says that it would
be odd to describe the acrobat’s harness as clothes. But on the other hand, in Ameritza,
time spent putting on the Wolfgirl makeup is held to be noncompensable, and it strains
credulity to claim that we would ordinarily describe three hours of applying makeup as
“changing clothes.” Some very good answers said that the principle that fits and justifies
the two prior statutory interpretation cases is a principle that sounds in the statute’s
general intent or purpose.
About half of the answers went from topic to topic in a sequential or checklist
fashion: first semantics, then legislative intent, then purpose, then horizontal precedent,
etc. While some of those answers were very good, the sequential or checklist approach
has the unfortunate side-effect of concealing rather than exposing problems (and
solutions) like the one just mentioned. As I said in class and at the review session, it is
artificial to put the grounds of decision in separate boxes.
Here’s another illustration of why it is better to see our concepts as tools and
dispositions rather than as boxes or a checklist. Consider the part of Logan that appeals
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to the personal right of bodily integrity or bodily privacy. What is a plausible way to
position that right within the FLSA, in such a way as to make it relevant to our case? We
need to read Logan and Ameritza together, because Ameritza seems to beat a retreat from
the integrity/privacy principle. Spending three hours putting on Wolfgirl makeup seems
at least as intrusive or invasive as two hours putting on the acrobatic harness and jeweled
bodysuit, yet the acrobat gets compensated and Wolfgirl does not. So the criterion has to
include something about consent or equality of bargaining power. The consent concept
led some answers to Nozick’s idea that border-crossings are impermissible unless consent
is given. But it would be hard to square libertarian natural rights with the basic design of
FLSA, with its minimum wage and overtime requirements. (The statute is very unlibertarian. It says that a willing worker and a willing employer cannot agree with one
another that the worker will work for a wage that is less than the federally mandated
minimum wage.) It is more plausible to pursue the idea of equality of bargaining power.
Wolfgirl’s hours of putting on and taking off her makeup aren’t subject to the minimum
wage and overtime requirements not because this activity is less dignity-invasive than
putting on and taking off the jewel-studded bodysuit and harness, but because the makeup
doesn’t have a safety function and also because Wolfgirl, unlike the acrobat, was
protected by a labor union. The role of the union helps explain Ameritza’s description of
the work arrangements as “a fair exchange among equals.”
A simple schematic might illuminate the state of the law after Logan and
Ameritza.
T1: Logan
T2: Ameritza
Outcome: Worker’s time is subject to
minimum wage and overtime.
Outcome: Worker’s time is not subject to
minimum wage and overtime.
Two hours a day
Three hours a day
Acrobatic harness and bodysuit
Wolfgirl makeup
Safety function and aesthetic function
Aesthetic function but no safety function
No union
Union; collective bargaining agreement
doesn’t include a term requiring
compensation for makeup time
What rule or principle fits and justifies this pattern of outcomes? We can rule out length
of time; the cases don’t say that the more time it takes the worker each day, the more it
counts as “work” instead of “changing clothes.” Safety function seems important; and in
that respect, our case at T3 is somewhat like the facts of Logan at T2. As in Logan, the
steelworkers’ gear has a central safety function plus some aesthetic and identification
features. But, as befits a hard case, our case at T3 is also like the case that came out the
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other way. In our case as in Ameritza, the workers have a union and the collective
bargaining agreement includes no term providing that the time be compensated. We have
to decide, in our hard case at T3, which matters more: the fact that the gear has a central
safety function (which makes our case like Logan) or the fact that the workers are
unionized and the collective bargaining agreement doesn’t include a compensationrequiring term (which makes our case like Ameritza).
A good treatment of the problem might run along the following lines. On its face,
the statute appears to say that the time is “work,” hence mandatorily subject to the
minimum wage and overtime, unless two things are the case: (1) the time is spent
“changing clothes,” AND (2) the exclusion of this time is agreed to in the applicable
collective bargaining agreement. Our steelworker plaintiffs argue that these are two
independently necessary conditions for noncompensability. They argue that time spent
putting on and taking off their safety gear simply isn’t time spent “changing clothes.”
They argue that if they are correct about this, then the existence and terms of any
collective bargaining agreement are simply irrelevant.
That’s certainly a plausible reading of the statute. On the other hand, among the
statute’s central fairness purposes (reflected in the statute’s name, Fair Labor Standards
Act) was enforcing the fair expectations of workers based on existing practices. Those
fair expectations arguably existed on a macro level (workplace practices across the entire
society and economy during the wartime years) and also on a more micro level (practices
hammered out through negotiations between labor and management). The defendant
employer in our case, Sterling, urges us to think about FLSA in that way. Viewed in that
light, we might see the eight plaintiff steelworkers as trying to defeat or unravel the fair
expectations that the union and the firm have built over many rounds of collective
bargaining reaching back for many decades. Our facts don’t tell us whether the
steelworker’s union agrees or disagrees with the plaintiffs. (What if the union is opposed
to suits like this one, on the ground that such suits will make it harder to strike a good
bargain in future rounds of negotiations?) By this route we reach one of the classic
crossroads in statutory interpretation cases. An interpretation devoted primarily to the
enacted text runs off in one direction, while an interpretation devoted to some
combination of text and purpose (as exhibited by statutory interpretation case law, among
other sources) runs off in another direction.
(Even if take the “text alone” road, we still face the usual interpretation problems.
Suppose some amount of time spent “changing clothes” at the workplace at the beginning
and end of each day. If there is no union and no collective bargaining agreement
(Logan), is that time “excluded” from compensable working time within the meaning of
FLSA §3? If there is a union and a collective bargaining agreement, but the agreement
simply says nothing about the matter one way or the other, is the time “excluded” from
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compensable working time? Does FLSA set the default at inclusion, so that even time
spent “changing clothes” is compensated unless there is a term to the contrary in the
bargaining agreement? Or does FLSA set the default at exclusion, so that time spent
“changing clothes” is excluded unless there is a term in the agreement that specifically
renders it compensable?)
Normative reasoning in statutory interpretation
Most answers did a good job with the fairness problem. Part of a good answer
here is pursuing the fairness of treating like cases alike. That includes the inquiry, above,
into what Logan and Ameritza stand for. Good treatments of the fairness problem also
ask whether something about the statute – its text (including the title?), its general intent
or purpose – supplies an authorizing reason for judicial consideration of the fairness of
compelling the firm to pay retroactive overtime to the steelworkers. As we all know, this
is a question on which reasonable minds can differ.
Most answers did a good job with efficiency analysis. The points made included
these:

The statute relies on collective bargaining and unions in order to overcome
transaction costs. But this creates a principal/agent problem. What if the union
doesn’t act as a good faith agent of the unionized workers? Are the eight
steelworkers suing because the union failed to represent the preferences of the
workers? Or are the plaintiffs free riders – they’re trying to get all of the benefits
of union representation plus retroactive overtime pay that the union traded for
other benefits?

If collective bargaining is viable, the Coase theorem kicks in. Labor and
management will negotiate to the efficient outcome, regardless of which side has
the initial entitlement. But lack of certainty about which side has the initial
entitlement is a transaction cost. And FLSA doesn’t permit workers to trade all
entitlements. (The union can’t agree to work for less than the minimum wage.
But it can agree that some hours spent at the workplace aren’t work time, if they
are “changing clothes” time.)

Paying the steelworkers for time spent putting on their safety gear creates a moral
hazard problem. Once they’re paid for that time, they have an incentive to take
longer to do it, to the mutual detriment of all (unless they do it more carefully
when paid).

Sterling argues that it is inefficient to pay the steelworkers for time spent putting
on the safety gear, since the cost of accident prevention will then exceed the cost
of the accidents prevented. But just as Sterling argues that the steelworkers are
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already paid (in effect) for their time because they traded if off for other benefits,
so (by that same reasoning) Sterling is already paying for these accidentprevention costs. During the next round of collective bargaining, that pay will
simply take a different form than before.
But it is worth stressing that efficiency analysis isn’t just automatically relevant to legal
reasoning in hard cases. Some answers went straight to efficiency because the defendant
firm, Sterling, makes economic and efficiency arguments. But the fact that a party
advances economic arguments doesn’t always mean that such arguments are judicially
cognizable. Good answers looked carefully into the question of whether anything about
the statute – its text, general intent, purpose, and statutory interpretation case law –
supplies an authorizing reason for economic analysis and efficiency analysis.
Many answers said that while the statute makes efficiency relevant, it doesn’t
make efficiency the dominant or exclusive value. Setting a minimum wage, and
assigning a significant role to unions and collective bargaining, arguably rests on notions
of minimum human dignity and equalizing bargaining power. Some answers said that
while tort law makes the cost-effectiveness of accident precautions relevant to negligence
liability, it does not follow that labor and employment law adopts that same framework.
“Common law”
Any teacher learns from exams about what was effective or ineffective in his or
her teaching. One thing I learned is that I did not succeed in getting about half of you to
draw a clear distinction between “common law” and other forms of case law, such as
statutory interpretation case law. Sometimes this is just a difference in terminology.
Thus, when some of you referred to Logan and Ameritza as “common law,” all you
meant to say was that these are cases whose meaning needs to be worked out because
they supply horizontal precedent in our own case. That’s fine, though even then I advise
you to refer to Logan and Ameritza as “statutory interpretation case law.” But some of
you, having described the cases as “common law,” then invoked your inner Scalia to
engage in a legal realist “all things considered” manipulation of them. This is confused.
Our inner Scalia marks a sharp distinction between the judicial roles in common law
(judge-made law not based on the interpretation of enacted texts) and statutory
interpretation. Our inner Scalia treats Logan and Ameritza very differently than he/it
would treat, say, Macpherson.
Some answers proposed “split the difference” holdings, such as: the time that the
steelworkers spend putting on and taking off their safety gear is subject to the minimum
wage but not to overtime; or, the steelworkers aren’t owed any retroactive overtime pay,
but from here on, their time spent putting on and taking off their safety gear is
compensable “work” time. While such suggestions are creative – and maybe they
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indicate possible lines of a settlement – once again they are resisted by our inner Scalia.
Whether or not a court would have the legitimate authority to “split the difference” in a
suit at common law (or in equity), is there anything in FLSA that empowers a court to do
so?
Strategies for studying and writing
Most answers followed the prompt. They began by spotting and framing issues,
proceeded to analyze the issues by identifying and weighing the strongest reasons on both
sides of the issues, and concluded (unless time ran out) by proposing holdings. But some
answers were structured more as course outlines, attempting to touch on and summarize
all of the main themes and concepts in the course. In general, it is better to regard course
concepts as tools and dispositions (abilities to respond), not bases to touch or items to
check off.
Some answers were not only structured too much as course outlines, but also
reflected too much dependence on somebody’s course outline. You use that kind of “aid”
at your peril. I read answers that made reference to course concepts that have not been
taught in LL&V for many years. Caveat emptor.
Most answers were structured as they should be, given the role in which you were
cast. As in many of the exercises, you were cast in the role of judicial clerk. Your job
here is to get to the bottom of the issues, reveal the competing reasons for decision that
render the case difficult, and suggest a good (if not perfect, because the case is hard)
holding that clarifies this body of law in a perspicuous way. Hence you are stating real
reasons for decision and assigning weights to those reasons. In other words, you are
offering meta-reasons why some reasons are stronger than other reasons. In line with the
strongest reasons, you are offering a proposal about what the holding should be. All of
this is somewhat different from advising a client based on your best prediction of what a
court is likely to decide. Your job, on the essay question, was not to make predictions
about what a court is likely to do, but to help a court make a decision about what it ought
to do, where “ought” includes all factors relevant in statutory interpretation cases.
Your inner Kijoon
You have great gifts. Thank you for playing a recital for me – and not such an
easy piece to play! You played in many different ways, and many of you reached back
and played your hearts out. Soon you will be playing for all the world to hear. You are
putting your gifts on the line, putting it out there, as Kijoon Baeg did on our last day of
class. Whatever your score or grade, I applaud for you.
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