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The DOL Changes Clothes: New Interpretation Affects “Protective Equipment” and Expands Compensable Activities

Labor & Employment Alert Sean M. Scullen, Otto W. Immel

The U.S. Department of Labor, Wage and Hour Division ("WHD") has reversed its previous position on the compensability of time spent changing into and out of ("donning and doffing") protective equipment. A recently issued Administrator's Interpretation provides that employers may not treat time spent donning and doffing protective equipment as unpaid time, even when the applicable collective bargaining agreement provides for nonpayment of such time. This Interpretation reverses two published opinion letters of the WHD from 2002 and 2007, and reinstates earlier opinion letters from 1997, 1998 and 2001.

The Interpretation addresses section 3(o) of the Fair Labor Standards Act ("FLSA"), which permits an employer to exclude time spent "changing clothes" from compensable hours worked if it does so pursuant to "the express terms of or by custom or practice" under a collective bargaining agreement. The WHD interpretation cites statutory language, legislative history and some recent court cases to conclude that protective equipment (i.e., mesh aprons, plastic belly guards, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts) required by the nature of a particular job or by law does not qualify as "clothes" for purposes of this exception.

According to the WHD's current position, the FLSA does not allow industries - most notably meatpacking and poultry processing industries - to rely upon a union contract or an established practice in a unionized setting to exclude time spent donning or doffing protective equipment from compensable work time.

The Interpretation also addressed a second issue: whether changing clothes could be a "principal activity" that would begin the compensable workday. It expressly reversed a 2007 opinion letter stating that clothes changing considered noncompensable as a result of § 203(o) could not be a "principal activity" that started the workday. Under the 2007 opinion, this meant that subsequent walking time to get to the place where the first "principal activity" would be performed would also not be compensable. The new Interpretation states that "Consistent with the weight of authority, it is the Administrator's interpretation that clothes changing covered by § 203(o) may be a principal activity." Thus, even if clothes changing is not compensable, if it is "integral and indispensable" to the employees' performance of their tasks, it becomes a principal activity commencing the continuous workday under the Portal to Portal Act. Therefore, any subsequent walking and waiting time would become compensable.

It remains to be seen whether WHD's inconsistent treatment of this issue over the last several years may have some impact upon deference to its interpretations. Regardless, it is important to understand current enforcement positions.

Wage and hour compliance is vital and the risk of noncompliance is significant, especially given a renewed emphasis on WHD enforcement and the prevalence of wage and hour collective and class action lawsuits. If you have any questions about these issues, or if you would like assistance in reviewing your personnel and pay policies and practices, please contact Sean Scullen at (414) 277-5421 / [email protected], Otto Immel at (239) 659-5041 / [email protected] or your Quarles & Brady Labor & Employment attorney.

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