DOL Issues Opinion on Compensability for “Donning and Doffing” Time

On June 17, 2010, the Department of Labor issued an administrator interpretation opinion letter reconsidering the DOL's 2002 and 2007 opinion letters about what constitutes compensable time related to changing clothes.

The FLSA, as modified by the Portal-to-Portal Act, provides that "changing clothes or washing at the beginning or end of each workday" is not compensable work time if the time is excluded from compensable time by "the express terms or by custom or practice" under a collective bargaining agreement. As a result of this language in 29 U.S.C. section 203(o), there has been much debate and litigation as to whether "donning and doffing" protective clothing for work constitutes "changing clothes" that is not compensable under this provision of the FLSA.

In 1997, the DOL issued an opinion letter providing that the time that meat packing employees spent putting on protective clothing such as mesh aprons, arm guards, shin guards, mesh gloves, rubber boots, and weight belts was compensable time because these types of protective clothing did not constitute "clothes" under section 203(o). This opinion was confirmed again in opinion letters in 1998 and 2001.

In 2002, however, the DOL departed from the prior opinion letters by issuing an opinion letter finding that the protective equipment typically worn by meat packing employees were "clothes" under section 203(o), and as a result, the time spent changing into those protective clothes was not compensable time. In 2003, the Ninth Circuit rejected the 2002 opinion letter and instead held that "ordinary, contemporary, common meaning" of the term "clothes" used in section 203(o) did not apply to protective clothing and equipment. See Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir. 2003). Nonetheless, the 2002 opinion was confirmed again in a 2007 DOL opinion letter.
Last week's opinion letter, however, rejects the 2002 and 2007 opinion letters and reverts back to the DOL's pre-2002 position. The opinion latter states:

"Based on its statutory language and legislative history, it is the Administrator's interpretation that the § 203(o) exemption does not extend to the protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. This interpretation reaffirms the interpretations set out in the 1997, 1998 and 2001 opinion letters and is consistent with the "plain meaning" analysis of the Ninth Circuit in Alvarez. Those portions of the 2002 opinion letter that address the phrase "changing clothes" and the 2007 opinion letter in its entirety, which are inconsistent with this interpretation, should no longer be relied upon."

The DOL opinion letter also addressed the issue of whether an employee's changing clothes, even if that act itself is not compensable work time, could be a "principal activity" that starts the work day. The opinion letter states: "Consistent with the weight of authority, it is the Administrator's interpretation that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable." Thus, if changing clothes is integral and indispensable to the work, changing clothes is a principal activity that starts the workday, such that everything that follows (such as walking from the locker area to the work area) is compensable time, even when the changing time itself is not compensable.

While the opinion letter is not law, it is a strong indication of how the DOL will enforce the laws and may be persuasive authority to courts. As a result, if you have employees who wear protective clothing and do not compensate them for the time they spend changing into and out of that clothing or if you have employees who change at your place of work and do not compensate them for the time spent walking from the changing area to the work station, you should consult with employment law counsel about the impact of this opinion letter on your employees.