Meaning of "Clothes" Under FLSA Section 203(o)

On June 16, 2010, yesterday, the Department of Labor’s Wage and Hour Division issued Administrator’s Interpretation No. 2010-2.  This interpretation states that the FLSA’s § 203(o) exemption—which provides that an employer does not have to pay its employees for time “changing clothes or washing at the beginning or end of each workday . . . by custom or practice under a bona fide collective bargaining agreement”—“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.”  This interpretation of the meaning of "clothes" overrules both a 2002 and 2007 opinion letter stating that protective equipment was included in the meaning of “clothes.”  Thus, employers must now compensate unionized employees for time spent putting on and taking off protective gear regardless of any collective bargaining agreements.

The Administrator’s Interpretation also concluded that “clothes changing covered by § 203(o) may be a principal activity.”  Thus, under the Portal to Portal Act, 29 U.S.C. § 254, changing clothes can now trigger the start of a work day and compensable work time.

For a further discussion of these topics, see also Philip Miles, Redefining Clothes – DOL Edition, June 16, 2010, available here; Daniel Schwartz, DOL Redefines “Clothes” Under Federal Wage & Hour Laws; Now Excludes Protective Equipment Required by Law, June 16, 2010, available here; Shaw Valenza LLP, US DOL Issues New Administrator Opinion, June 17, 2010, available here.

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