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DOL Reverses Position; Unionized Employers Now Must Pay for Time Spent Changing into Protective Gear

June 17, 2010

Department of Labor Reverses Its Position on "Changing Clothes"; Unionized Employers Now Must Pay for Time Spent Changing into Protective Gear

Continuing its trend of reversing Bush-era opinion letters, the U.S. Department of Labor has issued a revised definition of "clothes changing" under the Fair Labor Standards Act (FLSA) that will require more unionized employers to pay their employees for time spent changing into and out of protective clothing and equipment at the beginning and end of their shifts.

Section 203(o) of the FLSA provides that an employer need not pay employees for time they spend changing clothes and washing at the beginning or end of each workday, provided the employees are unionized and the labor agreement either expressly states employees need not be paid for such time or there is a "custom or practice" of not paying for such time. During the Bush administration, the DOL issued two opinion letters that stated that "clothes" under § 203(o) included protective equipment worn by employees in the meat packing industry, such as mesh aprons and sleeves, plastic belly and arm guards, and shin guards. These opinion letters thus expanded the types of pre- and post-shift activities performed by employees that employers did not need to pay for to include putting on and taking off heavy protective equipment, provided it was in a unionized setting.

In the new Administrator's Interpretation issued June 16, 2010, the DOL stated that these Bush-era opinion letters were inconsistent with the "plain meaning" of the FLSA and that the term "clothes" under § 203(o) 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." Employers are cautioned that the earlier opinion letters "should no longer be relied upon."

The June 16 Administrator's Interpretation also reverses the Bush administration's conclusion that "clothes changing" covered by § 203(o) is not a "principal activity" that starts the running of the compensable workday clock. The DOL instead determined that clothes changing may be a "principal activity" even if the time spent on changing is itself not compensable. If it is a "principle activity," then all the time that follows – including walking and waiting time – is compensable under the continuous workday rule, regardless of the compensability of the clothes-changing time.

The effect of the June 16 Administrator's Interpretation is that employers in unionized settings may now be required to pay for time their employees spend changing into and out of protective equipment and gear at the beginning and end of their shifts, even where the labor agreement expressly states employees need not be paid for such time or there is a "custom or practice" of not paying for such time. In addition, such employers may also need to pay for any walking or waiting time that follows changing time, even where the changing time is non-compensable under § 203(o).

In light of the DOL's new interpretation, employers in unionized settings who require their employees to wear protective equipment and gear should carefully review their compensation practices to ensure they are in compliance with the FLSA. Varnum attorneys Beth Skaggs, Jim Stadler, and Joe Vogan are ready to assist with such reviews, or answer any wage and hour questions you may have. Please feel free to contact any one of them at 616-336-6000.

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