The Department of Labor issued an “Administrator’s Interpretation” under the Fair Labor Standards Act (FLSA) that expands the compensable workday for many employees who change clothes at work or don any form of protective clothing.
Section 203(o) of FLSA provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time. Based on the language of Section 203(o) and its legislative history, the Administrator found that the 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or by the nature of the job. Thus, it appears to be the Department of Labor’s view that time spent donning and doffing any “protective equipment” is a compensable activity. This interpretation is broader than the United States Supreme Court’s holding in IBP, Inc. v. Alvarez, which held that employees must be compensated for the time they spend donning and doffing required “specialized protective gear.” By interpreting this section so broadly, the Department has arguably expanded the compensable workday to include time spent by employees changing into protective clothing, such as simple smocks and/or plastic aprons.
The Department of Labor also stated that the noncompensable activity of “changing clothes,” as opposed to donning protective clothing, can be a “principal activity” that starts the workday and renders all subsequent activity (including travel time, walking to and from the job site and/or waiting time) compensable. Therefore, employees who change clothes at work may be entitled to compensation for all walking or other time after the clothing change, even though the clothing change itself would not be compensable time. The Department of Labor’s expansion of the compensable workday may significantly impact those employers whose workforce wears protective clothing or changes into work clothing at work.