On June 16, 2010, the Department of Labor (DOL) issued one if
its newly-introduced "Administrator Interpretations" to
provide guidance on whether protective gear counts as
"clothes" under Section 203(o) of the Fair Labor
Standards Act (FLSA). (FLSA 2010-2) The "Administrator
Interpretation" is a vehicle the Wage & Hour Administrator
is now utilizing to make broad pronouncements about its
interpretation of various legal issues.
Under Section 203(o) of the FLSA, time spent "changing clothes
or washing at the beginning or end of each workday" is
excluded from compensable time if it is excluded by custom or
practice under a collective bargaining agreement. According to
DOL's latest Administrator's Interpretation, protective
clothing and equipment is not considered "clothes" under
this exception, and therefore unionized employees must be paid for
time spent putting on and taking off such equipment.
The definition of "clothes" as applied to Section 203(o)
has been the subject of varying DOL interpretations over the years.
From 1997 through 2001, the Department opined that protective gear
could not be considered "clothes" subject to the Section
203(o) exception. In 2002, however, the Department issued an
opinion letter reversing its position and stated that
"clothes" did, in fact, include protective gear. (Wage
and Hour Opinion Letter, June 6, 2002, FLSA2002-2.) The 2002
opinion letter relied on, among other things, the definition of
"clothes" from two dictionaries. In 2007, the
Administrator reaffirmed this position. (Wage and Hour Opinion
Letter, May 14, 2007, FLSA2007-10).
The DOL's latest interpretation withdraws both the 2002 and
2007 opinion letters, and reverts to the 1997 position that
protective gear is not subject to the Section 203(o) exception. In
doing so, the Department acknowledged that the provision's
legislative history is "sparse" but nevertheless states
that "the 'clothes' that Congress had in mind in
1949" when it passed the provision "hardly resemble the
modern-day protective equipment commonly donned and doffed by
workers." (Administrator's Interpretation No, 2010-2, June
16, 2010.) It further explicitly states that, in its opinion, the
Section 203(o) exemption does not apply to protective
equipment worn by employees that is "required by law, by the
employer, or due to the nature of the job." (Id.)
The latest Administrator Interpretation also concludes that
clothes-changing could be considered a "principal
activity" under the Portal to Portal Act, 29 U.S.C. §254,
and therefore any subsequent activities, including walking and
waiting, are compensable time even if the clothes-changing itself
is not compensable under Section 203(o). The Department reasoned
that under the Supreme Court's decision in IBP v.
Alvarez, 546 U.S. 21 (2005), activities that are
"integral and indispensable" are principal activities,
and activities occurring after the first principal activity and
before the last principal activity are compensable, even if the
activity itself falls under the Section 203(o) exception.
Therefore, even if the clothes-changing itself is not compensable
under Section 203(o), if it constitutes an "integral and
indispensable" principal activity under the Portal to Portal
Act, it still begins the workday, and any subsequent activities
must be compensated. The practical application of this
Interpretation is that an employer who is not required to pay an
employee for clothes-changing under Section 203(o) would still have
to pay the employee for any time spent walking to his station after
he finished changing clothes.
Based upon the Department's recent Interpretation, many
employers who have been relying on past Department opinions may
need to adjust their compensation practices to ensure employees are
being paid for time spent donning and doffing protective equipment,
as well as time spent walking to his or her worksite from a locker
room after changing clothes, even if the clothes-changing itself
was excluded from working time under a collective bargaining
agreement. Otherwise, employers could be subject to an
investigation and liability for FLSA violations, regardless of any
contrary provisions contained in the employer's collective
bargaining agreement. If you have any questions as to how the
policy should be applied to specific situations, please contact
Dinsmore & Shohl for guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.