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On June 16, 2010, the Wage and Hour Division (WHD) issued an “Administrator’s Interpretation” that reverses prior Bush administration WHD opinion letters interpreting section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o) and significantly narrows the scope and effect of that provision. This is the second “Administrator’s Interpretation” issued by the WHD since the Department of Labor ended the decades-old practice of issuing definitive fact-specific opinion letters submitted by organizations and individuals. The Administrator’s Interpretations are intended to present a general, “across the board” interpretation of rules and regulations.
Section 3(o) provides that “time spent changing clothes and washing at the beginning or end of each workday” is not compensable if such time is excluded pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. In its new interpretation, WHD concluded that (1) the definition of “clothes” does not include personal protective equipment (or protective clothing), and thus time spent “donning and doffing” such equipment would not be excluded from compensation; and (2) that clothes-changing time excluded from compensation by section 3(o) may nonetheless constitute a principal activity that begins the continuous workday, thus making subsequent activities such as walking and waiting time compensable.
Meaning of Changing Clothes
Pointing to statutory language and legislative history, WHD concluded that section 3(o)’s exemption “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.” In reaching this conclusion, the interpretation rejected portions of Wage and Hour Opinion Letter 2002-2 (June 6, 2002), and rejected in its entirety its last opinion letter on the subject, Wage and Hour Opinion Letter 2007-10 (May 14, 2007), both issued under the Bush administration. The interpretation instead explicitly endorsed and reaffirmed earlier opinions issued by WHD under the Clinton administration in 1997, 1998, and January 2001 concerning protective equipment worn by meat packing employees, including mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts.
In reaching its conclusion, WHD found persuasive the analysis set forth in Alvarez v. IBP, Inc., 330 F.3d 894, 895 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005), and three subsequent district court decisions, all of which involved meat packing employees. The WHD acknowledged that its current view is inconsistent with recent interpretations of section 3(o) by the Fourth, Fifth, and Eleventh Circuits, but attempted to distinguish those decisions as involving “lighter gear which was, in large part, different from the protective equipment that was the subject of the 1997, 1998, and 2001 opinion letters.
Start of Continuous Workday
In IBP v. Alvarez, 546 U.S. 21, 37 (2005), the Supreme Court held that activities occurring after the first “principal activity” of the workday and before the last “principal activity” of the workday are part of the “continuous workday” and thus compensable. Thus, to the extent donning of clothes is found to be a “principal activity” under the Portal to Portal Act, 29 U.S.C. § 254, subsequent activities such as walking to a work station become compensable. In Wage and Hour Opinion Letter FLSA 2007-10, WHD stated that section 3(o) activities cannot be principal activities that start the continuous workday. After noting that district courts are divided on the persuasiveness of the opinion letter, “with the majority of district courts rejecting [it],” WHD adopted the view that clothes-changing covered by section 3(o) may be a principal activity that starts the continuous workday.
The section 3(o) continuous workday issue is currently pending before the Seventh Circuit in Sandifer v. U.S. Steel Corp., No. 10-8001 (petition for interlocutory appeal granted Mar. 25, 2010). In addition, a similar petition for interlocutory appeal has been filed in the Eleventh Circuit in In re Tyson Foods, Inc. Fair Labor Standards Act Litigation, No. 10- (filed May 10, 2010).