DOL Issued its Second Administrator’s Interpretation that Alters the Definition of "Clothes" Under the FLSA

The Wage and Hour Division of the Department of Labor (DOL) issued its Second Administrator's Interpretation addressing what is considered "clothes" for purposes of determining compensable time under the Fair Labor Standards Act (FLSA). This most recent Interpretation reverses several opinion letters by stating that the exemption for donning or doffing clothes under Section 3(o) applies only to apparel and not several types of protective safety equipment. The Administrator also concluded that even though employers do not have to compensate employees for donning or doffing clothes if they are exempt under Section 3(o), these activities could be principal activities and trigger the beginning or end of the workday, resulting in compensable time.

Under Section 3(o) of the FLSA, time spent changing "clothes or washing at the beginning or end of each workday" is excluded from compensable time if the time is non-compensable pursuant to the express terms or customary practice under a collective bargaining agreement. Over the past 15 years as different political parties have assumed power, the DOL has defined and re-defined the meaning of "clothes" under this Section. The most recent opinion letter issued in 2002 departed from previous interpretations and concluded that "clothes" under Section 3(o) included the protective equipment worn by meat packing employees. Since that time, the courts weighing in on this issue have noted the vastly different definitions of "clothes" and have adopted a "plain meaning" of the term clothes that is more faithful to the legislative intent and earlier interpretations that protective equipment did not constitute "clothes." This most recent Interpretation by the DOL seems to follow this reasoning by concluding that the Section 3(o) exemption for clothes no longer applies to employees' protective equipment if the protective equipment is required by law, by the employer or by the nature of the job.

The Interpretation also provides that the donning or doffing of clothes covered by Section 3(o) may be a principal activity, depending on the situation. This appears to be counter-intuitive because the employees do not have to be compensated for their time in donning or doffing the clothes under Section 3(o). Yet the act of putting on clothes may trigger the start of their workday; similarly, their workday might not end until they take off the clothes. As a result, any time that the employees spend walking or waiting before or after donning and doffing these clothes could be compensable time, regardless of whether the clothes are considered protective equipment.

As a practical matter, it remains to be seen whether this most recent Interpretation will significantly alter employers' legal obligations as to compensability of clothes changing. While appearing to be somewhat conflicting, the Interpretation does follow recent court decisions and provides some guidance to employers on how the agency views this highly debated topic. Employers should review their policies carefully to confirm whether their payment practices comply with the FLSA.

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