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June 23, 2010 |
Be Aware: Employers Must Pay for Time Spent Donning and Doffing Protective EquipmentBy Matthew D. Lahey and Ashley L. Thompson On June 16, 2010, the Deputy Administrator of the Wage and Hour Division of the Department of Labor (the "Division") issued an opinion which limits the application of an exception available to unionized employers under the Fair Labor Standards Act. The new interpretation narrows the meaning of the word "clothes" in Section 203(o) by excluding protective equipment from the definition, and thereby requiring employers to compensate employees for the time spent donning and doffing protective equipment. The interpretation also states that donning and doffing, even if rendered noncompensable by Section 203(o), can be a "principal activity" for purposes of signaling the start of the continuous workday and triggering compensation for any activity which occurs after donning work clothes. The Definition of "Clothes"The Fair Labor Standards Act requires a covered employer to pay an employee for the hours the employee has worked. The employer must compensate the employee for any time spent participating in activities which are "an integral and indispensable part of the principal activities for which covered workmen are employed." Steiner v. Mitchell, 350 U.S. 247, 256 (1956). To determine the number of hours worked, the employer must include "the hours for which an employee is employed" but may "exclude any time spent in changing clothes or washing at the beginning or end of each workday" if such time has been excluded "by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." 29 U.S.C.A. § 203(o). In other words, a unionized employer can exclude "changing clothes or washing" from the measured time calculated for compensation either through negotiation or past practice. Id.In 1998, the Wage and Hour Division issued an opinion which stated that protective equipment was not included in the "plain meaning" of the word "clothes" in Section 203(o). Therefore, even if the time spent changing clothes was excluded under Section 203(o) by a CBA, the calculation of hours worked must include time spent donning and doffing protective equipment. Wage and Hour Opinion Letter February 18, 1998. The Division reaffirmed this interpretation in 2001. Wage and Hour Opinion Letter January 15, 2001. However, the Administrator during the Bush Administration reversed this interpretation in a 2002 opinion letter. The former Administrator stated that the definition of "clothes" included protective equipment and consequently the time spent "donning and doffing" such equipment could fall under Section 203(o)'s exemption. Wage and Hour Opinion Letter FLSA 2007-10. The Administrator's Interpretation released on June 16, 2010 returns to the interpretation utilized in the 1998 and 2001 opinions. The present Administrator found that "clothes" should be interpreted not based on the standard dictionary definition, but rather by understanding the original intent behind Section 203(o). According to the Administrator, at the time when Section 203(o) was passed, Congress was contemplating the donning and doffing of clothes used in the bakery industry and "modern-day protective equipment commonly donned and doffed by workers in today's meat packing industry, and other industries where protective equipment is required by law, the employer, or the nature of the job" is not the type that Congress considered when it issued Section 203(o). The Administrator reasoned that including protective equipment in the meaning of "clothes" would be expanding the exemption beyond what Congress intended. Donning and Doffing as a Principal ActivityAn employer must also compensate an employee for any activity which occurs during the course of the "continuous workday." The continuous workday begins with the first "principal activity," or in other words, the first activity of the workday which is "an integral and indispensable part of the principal activities for which covered workmen are employed." See IBP v. Alvarez, 546 U.S. 21, 30 (2006); 29 U.S.C.A. § 254. Wednesday's interpretation states that donning and doffing, even if excluded from the calculation of compensable time by Section 203(o), can still be a principal activity for purposes of signaling the start of the compensable workday. Therefore, although the Section 203(o) exemption may exclude the time an employee spends changing clothes for purposes of calculating wages, the act of changing may still begin the "continuous workday" and indicate that the employer must compensate the employee for every activity that follows the "donning" and precedes the "doffing" of work clothes. See Figas v. Horsehead Corp., 2008 WL 4170043 (W.D. Pa.) (stating that "activities rendered noncompensable under § 203(o) by a collective-bargaining agreement can nevertheless mark the beginning and the end of a continuous workday for purposes of the Portal Act, and that § 203(o) should be read to exclude only 'time spent in changing clothes or washing.'") (emphasis in original).If you have any questions about how the Administrator's Interpretation may affect your company's calculation of employee wages, please contact any one of our Labor and Employment group lawyers. RECENT LABOR AND EMPLOYMENT PUBLICATIONS
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