CLIENT UPDATE

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July 9, 2010

U.S. Department of Labor Narrows
Definition Of “Clothes” Under The FLSA

On June 16, 2010, the United States Department of Labor (“DOL”) issued its second Administrator’s Interpretation on the issue of whether protective equipment worn by union employees can be considered “clothes” for purposes of Section 203(o) of the Fair Labor Standards Act (“FLSA”).  The Interpretation narrows the definition of “clothes” to ensure that employees are properly compensated for “donning and doffing” activities.  The full text of the Administrator’s Interpretation is available here on the DOL’s website

Varying Interpretations of “Clothes” Under Section 203(o)

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 under the FLSA, if the time is excluded from compensable time by “express terms” of or by “custom or practice” under a collective bargaining agreement.  In two opinion letters from 2002 and 2007, the DOL interpreted the definition of “clothes” to include protective equipment. The current Administrator’s Interpretation rejects the definition stated in these prior opinion letters and, instead, reaffirms the interpretation of “clothes” found in three earlier opinion letters, which looked to the “plain meaning” and “common usage” to dictate the scope of the definition.  Consistent with these earlier opinion letters, the new Interpretation concludes that the Section 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.  Rather, the term “clothes” simply refers to apparel, such as a uniform, as opposed to equipment that is generally worn over such apparel and may be cumbersome in nature.

The DOL’s recent reversal is based on the legislative history of Section 203(o), as well as on the United States Supreme Court decision in IBP v. Alvarez, 546 U.S. 21 (2005).  The DOL contends that when Congress narrowed the scope of Section 203(o) in 1949, it did not intend to include the modern-day protective equipment donned and doffed by workers in certain industries.  In Alvarez, the Court adopted a plain meaning of clothes and ruled that the time spent donning and doffing protective equipment, as well as the time spent walking between the locker rooms and production area by meatpacking employees, was a compensable activity.

Clothes-Changing as a Principal Activity

The Administrator’s Interpretation also provides that, even if clothes-changing time is excluded from compensable time under the FLSA, donning and doffing of clothes and protective equipment may be considered a principal activity that starts a continuous workday under the FLSA. Under the continuous workday rule, the compensable workday begins the moment an employee engages in a principal activity or an activity that is integral and indispensable to a principal activity.  Thus, time spent donning and doffing, as well as any associated walking and waiting time, may be compensable under the FLSA, regardless of whether the clothes are considered protective equipment.

Considerations for Employers under the Interpretation

This Administrator’s Interpretation has substantial effect on certain industries that require employees to wear protective equipment (i.e., manufacturing, health care, and food production).  Employers should review their collective bargaining agreements to determine the scope of any exclusions or limitations of compensation for employees’ donning and doffing time.  Employers should also review their payroll system to ensure that employees are properly compensated for all compensable time. 

As always, we are available to assist with your compliance efforts.

Putney, Twombly, Hall & Hirson LLP