The Department of Labor released its second Administrator’s Interpretation today – No. 2010-2. The meat of the Department’s interpretations is that Section 203(o) exception to what is compensable time, does not extend to protective equipment worn by employees that is required by law, by the employer, or due t the nature of the job.
Section 203(o) of the Fair Labor Standards Act (FLSA) provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. 29 U.S.C. § 203(o). However, in many donning and doffing cases, where employees are not paid for the time that they put on and take off certain pieces of equipment, employers attempt to use Section 203(o) to defeat such a claim. In following the Judge Crabb’s lead in Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 868 (W.D. Wis. 2007), and other similar decisions, the Department concluded that time spent donning and doffing protective equipment worn by employees is a compensable activity in spite of Section 203(o)
The Department explained Section 203(o) does not make donning and doffing activities any less ‘integral and indispensable’ to the employees’ performance of their daily tasks. In other words, the character of donning and doffing activities is not dependent upon whether such activities are excluded pursuant to a collective-bargaining agreement. To hold otherwise would expand the Section 203(o) exclusion well beyond clothes. If the donning, doffing, and washing excluded by Section 203(o) are determined by the trier of fact to be integral and indispensable, those activities could commence the workday.
Meat packing and other similar workplaces where employees are asked to don and doff equipment are an area rife with wage theft. The Department’s interpretation is another tool for employees to ensure they receive compensation for every hour they work.
