Under FLSA section 203(o), time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time if it is treated as non-work time by a collective bargaining agreement.  Accordingly, to determine whether the exemption applies, courts often have to decide whether certain items, such as protective boots and aprons, are “clothes” under the FLSA. 

In June 2010, the Department of Labor (“DOL”) issued an Administrator’s Interpretation addressing the definition of “clothes.”  The DOL concluded that the exception for changing “clothes” does not include protective gear, i.e., changing into and out of protective equipment is compensable. 

Moreover, the DOL stated that changing clothing--even if not itself a compensable activity--may nevertheless be considered a “principal activity” sufficient to trigger the continuous workday.  Under such an interpretation, subsequent activities performed by an employee after he or she changes “clothes,” such as waiting, walking or other travel time, could be compensable under the FLSA. 

Unlike the Opinion Letters that the DOL has issued in the past, the Administrator’s Interpretation was issued without prompting by an employer and represented a new, more proactive approach by the DOL.  Whether courts would follow the DOL’s new positions or afford its new approach for offering them any deference was unclear.

On Tuesday, Judge Posner answered these questions for the Seventh Circuit.  In a collective action brought against U.S. Steel, the plaintiffs claimed they were owed wages for time spent changing into and out of their work clothes in a locker room at the plant, and for time spent walking between the locker room and their work stations at the start and end of the day.  The company was not required to compensate for such time under the parties’ collective bargaining agreement. 

The Seventh Circuit rejected both of the plaintiffs’ claims.  First, the Court rejected the plaintiffs’ position that personal protective equipment cannot be “clothes” under the FLSA: “Protection--against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting--is a common function of clothing, and an especially common function of work clothes by factory workers.  It would be absurd to exclude all work clothes that have a protective function from section 203(o), and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.”  Accordingly, the Court concluded that the work clothes at issue (flame retardant pants and jacket, work gloves, protective hood, and metatarsal boots) are “clothes” under the FLSA and, therefore, the company did not have to pay employees for donning and doffing them.  To the extent the other items (glasses, ear plugs, and a hard hat) are not “clothes,” the Court opined that time spent putting them on was not compensable because de minimis

Next, the Court rejected the plaintiffs’ argument that the company had to pay employees for travel time to and from the locker room even if the clothes-changing time is not compensable (i.e., they argued that a noncompensable activity nevertheless could be a “principal activity” that triggers the continuous workday).  As the Court explained, “[i]f clothes-changing time is lawfully not compensated, we can’t see how it could be thought a principal employment activity, and so section 254(a) [the Portal-to-Portal Act] exempts the travel time in this case.”  In sum, the plaintiffs’ workday started when they arrived at their work site, and not when they changed their clothes or started walking to their work areas. 

Finally, the Seventh Circuit acknowledged that its decision conflicts with the current position taken by the DOL, both in its 2010 Administrator’s Interpretation and in an amicus brief that it submitted.  Nonetheless, the Court refused to give the DOL’s views any weight because the DOL failed to adduce any institutional knowledge that might help the Court and its views changed by presidential administration.  To defer to the DOL, therefore, “would make a travesty of the principle of deference to interpretations of statutes by the agencies responsible for enforcing them . . . since that principle is based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.” 

This decision is important to employers in two ways.  Not only did the Seventh Circuit refuse to expand the scope of what is considered compensable time under the FLSA, but it dealt a blow to the deference given to the DOL’s interpretations of the Act.