On June 16, 2010, the United States Department of Labor released an opinion on Section 3 of the Fair Labor Standards Act, 29 U.S.C. Section 203(o), and the definition of “clothes” as it relates to this section. While this section of the Fair Labor Standards Act has been previously discussed in this blog in relation to a Wisconsin court case, the opinion of the U.S. Department of Labor on this issue has not been discussed.
The first aspect of the issue which the Administrator considered was whether protective equipment could be considered “clothes” under the Section 203(o) exemption in a 1997 opinion letter. In said opinion letter, the Administrator concluded that the time spent putting on, taking off and cleaning the protective equipment used in the meat packing industry was compensable and that the protective equipment did not constitute “clothes” under the Section. The 1997 opinion letter contended that, in the Section the term “clothes” has a “plain meaning” and therefore does not incorporate protective equipment such as “mesh aprons, plastic belly guards, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts”. Rather, “clothes” refers to apparel and not to protective safety equipment which is generally worn over such apparel and may be cumbersome in nature. Therefore, the Administrator interpreted that the Section 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 Administrator then considered whether or not changing clothes for work was considered a principal activity. A principal activity is an activity which is “integral and indispensable” and activities occurring “after the first principal activity and before the last principal activity, are compensable”. Alvarez, 546 U.S. at 37. It is generally understood that putting on and taking off clothes can be a principal activity under the Portal to Portal Act.
The court in Figas v. Horsehead Corp. in 2008 noted that Section 203(o) excludes “any time spent in clothes changing or washing at the beginning or end of each workday.” The court maintained that the excluded time is considered to be a part of the workday. Due to the fact that activities within the workday are compensable under the above-mentioned Portal Act, the language of the Section supports the compensability of the activities that follow clothes changing. Courts which have upheld this conclusion include In Re Tyson Foods, Inc. which pointed out that the Section “only relates to the compensability of time spent donning, doffing, and washing of the person and that does not mean that 203(o) tasks cannot be considered principal activities that start the continuous workday.”
In consideration of these facts, the Administrator’s interpretation is 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”.
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