Department of Labor Says Time Spent Donning Protective Gear is Working Time and Starts Work Day

By Elizabeth Chilcoat

On June 16, 2010, the Department of Labor ("DOL") issued an Administrator's Interpretation addressing: (1) the compensability of time spent donning and doffing protective gear and (2) whether changing clothes is a principal activity that commences the work day.  This places employers on notice of significant changes in the DOL's interpretation of the Fair Labor Standards Act ("FLSA") provisions that govern donning, doffing, and post-donning activities.

First, the Administrator's Interpretation adopted a narrow definition of section 3(o) of the FLSA, which provides that time spent changing clothes and washing at the beginning and end of the workday may be excluded from compensable work time by the express terms of, or custom or practice under, a collective bargaining agreement.  In the Administrator's Interpretation, the DOL took the position that the protective equipment an employee is required to wear by law, by the employer, or due to the nature of the job is not "clothes."  Consequently, time spent donning and doffing such protective equipment is working time (the time is not subject to section 3(o)'s conditional exclusion from compensable work time).

Second, the Administrator's Interpretation states that changing clothes under section 3(o) can be a principal activity that commences the compensable workday.  An activity is a principal activity if it is integral and indispensable to the employee's performance of his or her duties.  Therefore, employers that do not compensate employees for changing clothes under section 3(o) may be required to compensate them for post-changing activities, including walking and waiting time. 

In the near-term, the Administrator's Interpretation places employers, particularly those in the meat packing and poultry processing industries (which are explicitly mentioned in the Administrator's Interpretation) on notice that the DOL considers time spent donning and doffing protective equipment to be compensable work time, and that all time after an employee dons protective gear must be compensated.

The long-term effect of the Administrator's Interpretation is uncertain.  From 1997 to 2001, the DOL favored a narrow definition of "clothes" as attire, which excluded protective equipment.  Then, in 2002 and 2007, the DOL adopted a broader definition of "clothes" as including anything worn to cover or protect the body, which included protective equipment.  The 2010 Administrator's Interpretation signals a return, for the DOL at least, to the 1997-2001 definition of "clothes."  Courts have not consistently followed the DOL's then-current interpretation of section 3(o).  The Ninth Circuit has limited section 3(o) to changing street clothes and not protective equipment, but the Fourth, Fifth, and Eleventh Circuits have defined "clothes" as anything worn on the body for coverage, protection, or sanitization, which clearly includes protective equipment.  

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©2010 Sherman & Howard L.L.C.                                                        July 7, 2010