- Department of Labor Provides Guidance Regarding Whether Donning and Doffing Protective Gear Constitutes Compensable Time
- June 30, 2010 | Authors: Janilyn Brouwer Daub; Teresa L. Jakubowski; Mark S. Kittaka; Peter A. Morse; William A. Nolan; Michael A. Snapper; Eric H. J. Stahlhut; Steven J. Whitehead
- Law Firms: Barnes & Thornburg LLP - Minneapolis Office ; Barnes & Thornburg LLP - South Bend Office ; Barnes & Thornburg LLP - Washington Office ; Barnes & Thornburg LLP - Fort Wayne Office ; Barnes & Thornburg LLP - Indianapolis Office ; Barnes & Thornburg LLP - Columbus Office ; Barnes & Thornburg LLP - Grand Rapids Office ; Barnes & Thornburg LLP - Elkhart Office ; Barnes & Thornburg LLP - Atlanta Office
The Wage and Hour Division of the Department of Labor issued guidance this week regarding whether donning and doffing protective gear is compensable time under the Fair Labor Standards Act (FLSA). Section 203(o) of the FLSA provides that time spent changing clothes or washing at the beginning or end of each workday may be excluded from “compensable time” when expressly made non-compensable pursuant to the terms of a bona fide collective bargaining agreement or by custom or practice under such an agreement.
Prior to 2002, the Department issued opinion letters concluding that protective gear worn in the meat packing industry including, mesh aprons, plastic belly guards, mesh sleeves, polar sleeves, shin guards and weight belts could not be considered “clothes” under Section 203(o). In 2002, however, the Department departed from this position. In an opinion letter, the Administrator opined that “clothes” under Section 203(o) included the protective equipment typically worn by meat packing employees.
But the Department has again reversed course. After reviewing the legislative history of Section 203(o), as well as court decisions interpreting it, the Department adopts the position that the plain meaning of the term “clothes” includes protective gear. Thus, under the present interpretation, the Section 203(o) exemption 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.”
Additionally, the Department noted that donning and doffing, which may include clothes changing, can constitute a “principal activity” under the Portal to Portal Act. The Supreme Court held that activities that are integral and indispensable constitute principal activities. Activities occurring after the first principal activity and before the last principal activity are compensable. Thus, for example, time spent donning and doffing, as well as any walking and waiting time that occurs after the employee engages in the first principal activity and before finishing the last principal activity, is part of the “continuous workday” and is compensable under the FLSA.
In a 2007 opinion letter, the Department stated that activities that are excluded from compensability under Section 203(o) cannot constitute principle activities that serve as a trigger for the start of the work day. But the Department observed that several courts have since rejected this view. According to the new interpretation, clothes changing covered by Section 203(o) may constitute a principal activity. In situations where clothes changing is defined as a principle activity, all subsequent activities, such as walking and waiting, are compensable.