Department of Labor Addresses Donning and Doffing Issues in New Administrative Interpretation

The United States Department of Labor ("DOL") Wage and Hour Division ("WHD") has issued its second "Administrator Interpretation" (No. 2010-2) addressing certain donning and doffing issues.

First, WHD clarified the term "clothes" in relation to Section 3(o) of the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 203(o).

Section 3(o) of the Fair Labor Standards Act (FLSA) provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. 29 U.S.C. § 203(o). After a careful analysis of the statutory provision and a thorough review of the legislative history and case law, the Administrator is issuing this interpretation of the term “clothes” in § 203(o), and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues.

WHD found that "protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job" does not constitute "clothes" under section 203(o). See Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005). As such, time spent donning or doffing such protective equipment is compensable time.

Second, WHD considered whether non-compensable time spent changing clothes is a "principal activity" that begins the "continuous workday."

Generally, donning and doffing, which may include clothes changing, can be a “principal activity” under the Portal to Portal Act, 29 U.S.C. § 254. IBP v. Alvarez, 546 U.S. 21, 30 (2005). The Supreme Court in Alvarez explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. Alvarez, 546 U.S. at 37. Thus time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the “continuous workday” and is compensable under the FLSA. Id. at 37.

WHD sided with the "weight of authority" and found that changing clothes covered by section 203(o) "may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable."

WHD's web page for Administrator Interpretations is here. You can sign up to receive automated email alerts from DOL here.