On June 16, 2010, Nancy J. Leppink, Deputy Administrator of the U.S. Department of Labor, Wage and Hour Division, issued the second in her inaugural series of Administrator's Interpretations. Unfortunately, this newest interpretation (pdf), like the first, seems to reflect a continued effort by the Wage and Hour Division to reject certain key interpretations of the Fair Labor Standards Act (FLSA) issued during the Bush Administration.

In the latest interpretation, the Administrator examines whether protective equipment worn by union employees can be considered "clothes" for purposes of section 203(o) of the FLSA and whether clothes changing covered by section 3(o) constitutes a principal work activity. Section 203(o) 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).

This is not the first time the Administrator has examined this issue. In fact, since 1997 the Administrator has issued a series of conflicting opinion letters. In 1997, 1998 and 2001 opinion letters the DOL concluded protective equipment was not "clothes." In contrast, in 2002 and again in 2007, the Administrator found that "clothes" included protective equipment. The newest letter reaffirms the narrow interpretation of "clothes" found in the 1997, 1998 and 2001 opinion letters and rejects the interpretation contained in the 2002 and 2007 letters that protective equipment constitutes clothes for purposes of Section 203(o).

The letter also examines whether clothes changing covered by Section 203(o) may be a principal work activity such that any subsequent activities such as walking and waiting become compensable working time. In 2007, the Administrator concluded that clothes changing activities encompassed by Section 3(o) were not principal work activities and, therefore, walking and waiting that occurred immediately thereafter would not be compensable. The new interpretation rejects the 2007 letter and concludes clothes changing covered by section 203(o) may be a principal work activity.

To learn more about this development and its implications for employers, please continue reading Littler's ASAP, Department of Labor Issues Interpretation Narrowing Clothes-Changing Exclusion and Expanding Scope of Compensable Workday, by Laurent R.G. Badoux and Michael J. Lehet. 

This entry was written by Lee Schreter.

Photo credit: tomazl