WHD Changing Policy on Removing Protective Gear

On June 16th the Wage and Hour Division of the Department of Labor issued a new interpretation that the statutory provision does not excuse an employer’s failure to pay an employee for time spent donning and doffing protective equipment that is “required by law, by the employer, or by the nature of the job.”  Under the Bush Administration WHD citing dictionary definitions of clothes held that protective equipment worn by meatpacking workers was covered by the statutory exclusion from compensable pay.  The current deputy administrator of WHD, Nancy Leppink, issued an interpretation of the term “clothes” and on whether changing clothes is a “principal activity” under federal law “to provide needed guidance on these important and frequently litigated issues.”  Leppink said that the FLSA permits an employer to exclude from compensable hours an employee’s time spent changing clothes or washing at the beginning or end of a workday if the time is excluded by “the express terms of or by custom or practice under a bona fide collective-bargaining agreement.”  However, according to Leppink the provision does not extend to protective equipment worn by employees and that Bush-era interpretations to the contrary “should no longer be relied upon.”  “Clothes changing” covered by FLSA may be a principal activity marking the beginning of a workday, triggering the obligation of an employer to pay an employee for subsequent activities, including walking and waiting time.

“Rejecting Bush-Era View of FLSA Exemption, WHD Backs Pay for Changing Protective Gear,” BNA Daily Labor Report, 6/17/2010.