DOL Revises Interpretation of "Clothes," Changing Time Considered Compensable

Recently, the U.S. Department of Labor's (DOL) Wage & Hour Division issued an Administrator's Interpretation to provide guidance on whether protective gear is considered "clothes" in Section 203 (o) of the Fair Labor Standards Act (FLSA).  In addition to defining "clothes," the interpretation clarifies whether time spent by employees washing or changing clothes, or "donning and doffing" protective gear and other equipment is compensable.  This interpretation reverses prior opinion letters issued by DOL and affects collective bargaining agreements (CBAs) where such time may have once been considered unpaid. Administrator's Interpretation No. 2010-2 (AI) specifically states that the definition of "clothes" does not include "protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job."  As a result, the FLSA exemption for changing into and out of "clothes" does not include donning and doffing protective equipment, according to DOL, and such time is therefore compensable, even if it was to be unpaid under the terms of a CBA. The AI also states that while time spent changing "clothes" - not protective equipment - can still be unpaid according to the terms of a CBA, "subsequent activities, including walking and waiting, are compensable."  Such activities, like walking or transporting to a jobsite and waiting in line at a time clock, now begin a continuous workday.  According to DOL, unionized employees cannot bargain away these rights, so a CBA provision stating that time spent donning and doffing such equipment is not compensable, or one stating that time spent transporting and waiting is not compensable, is now invalid. Although agency guidance like the AI is not binding on courts, they are often given deference by courts and they may provide employers that follow them with a defense if sued. For more information on the FLSA, visit the DOL website or AGC's Labor and HR Topical Resources page on the AGC website.