Employees Should be Paid for Putting on and Taking off Protective Gear

By | June 22nd, 2010 | General

In its second ever “administrative interpretation”, the Department of Labor once again overturns previous opinions issued during the Bush Administration. Under Section 203(o) of the Fair Labor Standards Act, time spent “changing clothes” is not counted as compensable time if it is excluded from a Collective Bargaining Agreement. Until 2002, the Department of Labor considered the act of “donning and doffing” of protective gear as distinct from “changing clothes”. However, in 2002, it reversed course and stated that “clothes” included protective gear and therefore the time spent putting it on or taking it off need not be paid. In the DOL’s new interpretation, it once again concludes that the exception in 203(o) for changing “clothes” does not include the putting on and taking off of protective equipment. Therefore, time spent putting on or taking off this equipment must be paid.

One additionally important aspect of the new interpretation is the conclusion that the act of changing clothes, even if not compensable under Section 203(o), can be a “principal activity” that triggers the start of a continous workday. Employers are familiar with their obligation to pay an employee for all activites that occur after the first “principal” activity and before the last “principal” activity, including waiting time and traveling to/from workstations and locations that occur in the middle. The DOL concluded that the act of changing clothes, even if itself not compensable, can be an “integral and indispensable” activity, such that the continuous work-day clock can begin to run as soon as those activites are completed. Therefore, under this new opinion, all activities that follow the changing of clothes — including traveling to a particular work station, even if it takes 30 minutes or more, would be compensable.

For more information about what is considered compensable time under the wage and hour laws, contact the Employers Legal Resource Center at 405-702-9797.

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