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Changing covered clothes may be a principal activity under FLSA

FLSA, Section 3(o), which exempts from compensation the time spent by employees “changing clothes,” 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, according to the Department of Labor Wage and Hour Division, in a recent Administrator’s Interpretation. Moreover, clothes changing that is covered by Section 3(o) may be a “principal activity” for purposes of triggering the start of the workday under the Portal to Portal Act and, when that is the case, subsequent activities, including walking and waiting, are compensable.

Wage & Hour Deputy Administrator Nancy J. Leppink traced the evolution of the DOL’s interpretation of “clothes” under Section 3(o) as set forth in agency opinion letters issued since 1997. Both the courts and the Wage & Hour Division have looked to dictionary definitions of “clothes,” some of which have proven vastly divergent and offered “little useful guidance,” she noted. The Interpretation follows the plain meaning approach to the term “clothes” that has been adopted by several courts in recent years, which the agency believes is more faithful to the legislative intent of the Act. This approach is consistent with (now-favored) opinion letters issued in 1997, 1998, and 2001. The Interpretation also cited the US Supreme Court’s 2005 ruling in IBP v Alvarez, and the analysis set forth in district court decisions that have followed, as “most consistent with the statutory language and [adhering] most closely to the guidance provided by the legislative history.” Thus, consistent with these interpretations and the “plain meaning” analysis in Alvarez, “[t]he Section 3(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,” the Interpretation advises.

Relevant portions of a 2002 opinion letter to the contrary (FLSA 2002-2, which determined that protective equipment worn by meatpacking workers was “clothing” under Section 3(o), should no longer be relied upon, the Interpretation advised. Nor should a 2007 opinion letter (FLSA 2007-10) that is inconsistent with the 1997, 1998, and 2001 opinion letters. Both the 2002 and 2007 opinion letters have been withdrawn.

Clothes-changing can be a principal activity. The 2007 opinion letter was disclaimed in the most recent Interpretation because it states that Section 203(o) activities cannot be principal activities, such that they could trigger the start of the compensable workday. Leppink wrote that most district courts, too, have rejected the 2007 guidance. She cited in particular Figas v Horsehead Corp (WDPa 2008), which noted that the opinion letter “provides no basis for concluding that a ‘principal activity’ somehow becomes ‘preliminary’ or ‘postliminary’ merely because employees need not be compensated for the time taken to perform it.” “Consistent with the weight of authority,” then, “it is the Administrator’s interpretation that clothes changing covered by Section 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.” (Wage & Hour Interpretation No 2623 (FLSA 2010-2) June 16, 2010.)