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DOL issues new interpretation on rules for protective clothing

August 20 2010

The Department of Labor’s Wage and Hour Division recently issued a new interpretation of a statute that could have a direct impact on many TAUC members: when employees should be paid for time spent donning and doffing protective equipment.

Under Section 3(o) of the Fair Labor Standards Act, employers and unions are free to negotiate collective bargaining agreements in which the employers aren’t required to pay workers for the time they spend changing clothes and washing at the beginning and end of workdays. The problem is, how do you define “clothes”? Originally, the Department of Labor said that protective equipment (gloves, arm and shin guards, etc.) didn’t fall under the “plain meaning” of “clothes,” and therefore workers should be paid for the time spent putting on and taking off that equipment.

But, in 2002, in another interpretation, the department reversed itself, deciding that “clothes” covered protective equipment, too (in that case, the kind of equipment that meat packing employees wore), and employees didn’t have to be compensated.

Now, once again, the department has changed its understanding of Section 3(o). In an interpretation issued June 16, Deputy Administrator Nancy Leppink wrote that protective equipment does not fall under the plain meaning of “clothes.” That means employers must pay workers for the time spent taking on and off equipment “that is required by law, by the employer, or due to the nature of the job.”

Leppink pointed out that the statute was crafted in 1949 and was originally meant to apply to collective bargaining agreements in the bakery industry. “The ‘clothes’ that Congress had in mind in 1949…those ‘clothes’ that workers in the bakery industry changed into and ‘took off’ in the 1940s – hardly resemble the 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,” she said.

In the interpretation, the department also said that even when regular clothes-changing activities are covered by the exemption – i.e., employees aren’t eligible for compensation while changing and unchanging – they can, in certain circumstances, still be deemed a “principal activity” that starts the workday. In those situations, while workers can’t be paid for changing clothes, they can be paid for related activities, such as walking from the locker room to the actual worksite.

To read the complete five-page interpretation in PDF format, click here.

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