On June 16, the Department of Labor issued an “Administrator’s Interpretation” addressing the compensability of time spent by employees changing clothes and equipment before and after work (commonly referred to as “donning and doffing). The Interpretation reversed opinion letters on the subject issued by the Bush administration in 2002 and 2007, and lowered the standard for employees to seek compensation for such activities.
The Interpretation addressed two issues. First, the advisory notes that Section 203(o) of the Fair Labor Standards Act (FLSA), which allows employers to negotiate with a Union to exclude from compensable time certain donning and doffing activities, should be narrowly interpreted. The DOL concluded that time spent “changing clothes” (which can be lawfully excluded under the express terms or by custom or practice under a collective bargaining agreement) does not include time spent donning and doffing safety or protective equipment in the meat packing and other industries. Second, the DOL opined that even non compensable time spent “changing clothes” would constitute the start of the continuous work day, thus making any walking or waiting time after that point compensable.
Employers in industries where workers regularly change clothes, wear safety equipment, or clean up after work should take note of this important change in DOL position, including meat packing, healthcare, manufacturing, and hazardous jobs. Although the decision is aimed primarily at unionized workforces, it has much broader implications. Companies in these industries should:
· Review any applicable collective bargaining agreements to determine the scope of any agreed upon exclusion (or limitation) of employee compensation for donning and doffing time and seek legal advice on whether such agreement is still enforceable after this Interpretation.
· For both union and non-union employers, it is critical to conduct an audit of payroll practices to verify the point at which employees don any protective equipment or changes clothes and whether employees are being compensated for all time after this point until the employees change back into street clothes or remove the protective equipment.
· Employers should not allow employees to change into any specialized work clothing (such as gloves, smocks, or special boots) or don any safety equipment before the shift starts or the intended start of the work day, since this could trigger an obligation to pay employees for all time thereafter (even if they are simply walking or waiting and not performing any work).
· Employers should review the location of changing areas and their proximity to time clocks to ensure that any walking time after employees have started their work day by donning specialized clothing or equipment is adequately captured in the payroll system.
If you have any questions, please contact Michael Kun, Co-Chair of the Firm’s Wage and Hour Subpractice Group.