From Christina T. Tellado of GT Philadelphia. Thanks and Welcome To Christina!

The DOL’s second Administrator’s Interpretation provides an analysis of what constitutes “clothes” under Section 203(o) of the FLSA. Section 203(o) excludes time spent by employees donning and doffing “clothes” or washing time from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement. The FLSA does not, however, define the term “clothes,” and many courts have disagreed over what constitutes changing clothes under the exception.

The DOL’s new interpretation adopts a “plain meaning” of the term clothes and explicitly makes a distinction between clothes and protective clothing. Specifically, it states that the FLSA does not excuse an employer from compensating employees for time spent donning and doffing protective equipment that is “required by law, by the employer, or the nature of the job.” This marks a change in the DOL’s position on the issue. Previous DOL Opinion letters from 2002 and 2007 that concluded that protective gear did not constitute “clothes” are effectively overruled by DOL’s recent Interpretation.

The Administrator’s Interpretation further concludes that clothes changing falling within the 203(o) exception could constitute a principal activity triggering the start of the workday and an employer’s obligation to compensate employees for subsequent activities, such as walking and waiting time. This finding also departs from the DOL’s prior position that changing clothes within the meaning on section 3(o) did not constitute a “principal activity” and therefore did not start the compensable work day. This change in position by DOL means that an employer may be required to compensate employees for walking or waiting time following changing clothes.

The impact of the DOL’s new Interpretation is hard to gauge. It is only the second Interpretation issued by the DOL and the level of deference that will be accorded these position statements is unclear. One thing is clear — employers should review their current practices and policies concerning compensation for time spent donning and doffing uniforms and protective clothing. Employers can no longer rely on the DOL’s 2002 and 2007 Opinion Letters. The new Interpretation does offer some hope that the DOL may consider lighter protective gear to fall under 203(o)’s coverage. In all, the Interpretation does little to clear the muddy waters of the often litigated issue of what constitutes “clothes” under Section 203(o).

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.