DOL Issues New Interpretation of “Clothes” Under FLSA and Expands What Constitutes Compensable Activity

On June 16, 2010, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued Administrator’s Interpretation No. 2010-2, addressing the definition of “clothes” under the Fair Labor Standards Act (FLSA). The DOL’s new position seeks to clarify whether time spent donning and doffing protective equipment and other gear by employees is a compensable activity.

Under FLSA section 203(o), time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time. Accordingly, to determine whether the exemption applies, courts often have to decide whether certain items, such as protective boots and aprons, are “clothes” under the FLSA.

The DOL’s new interpretation addresses this issue and concludes that the exception for changing “clothes” does not include protective gear. Specifically, the interpretation states that the definition of “clothes” does not include “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job.” As a result, the Administrator concluded that the section 203(o) exemption does not extend to protective equipment worn by employees, i.e., changing into and out of protective equipment is compensable.

Moreover, the DOL’s new interpretation states that changing clothing—even if not itself a compensable activity—may nevertheless be considered a “principal activity” sufficient to trigger the continuous workday. Under such an interpretation, subsequent activities performed by an employee after he or she changes “clothes,” such as waiting, walking or other travel time, could be compensable under the FLSA.

In both instances, the Administrator’s Interpretation represents a new, more proactive approach by the DOL. Unlike the Opinion Letters that the DOL has issued in the past, the Administrator’s Interpretation was issued without prompting by an employer, and is the second such interpretation issued this year. Although the deference owed to these interpretations is unclear, they will no doubt be considered by some courts going forward.

The DOL’s recent interpretation can have a substantial impact on what is considered compensable time for employees who don and doff protective equipment. It may now be easier for employees to argue that such equipment is not “clothing” under the FLSA and, thus, the donning and doffing of that gear is compensable.

Further, even if an employer establishes that items are “clothes”—which may now be harder to do—the donning of that clothing might still trigger the continuous workday. If this interpretation were to be followed, employers who rely on the exception under FLSA section 203(o) would be obligated to compensate employees for more pre- and post-shift activities, and the interpretation will cause those employers whose employees wear particular uniforms, such as meat/poultry and other food processors, healthcare providers, transportation companies, among many others, to evaluate whether such clothes changing constitutes a “principal activity” for that employer.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.