Reversing a Bush-era interpretation, the US Department of Labor (DOL) issued Administrator’s Interpretation No. 2010-2 on June 16, 2010. The subject of the Interpretation is the definition of clothes as it is covered in the Fair labor Standards Act, 29 U.S.C. §203(o). There are two issues with regards to the statute:

1. The definition of the term ‘clothes’
2. Whether or not donning, doffing or washing are considered principal activities in the work place

In rendering her opinion, Deputy Administrator Nancy J. Leppink reviewed the history of the definition from opinion letters as far back as 1997. From 1997 until the Bush interpretation in 2002, the time taken putting on and taking off and cleaning protective equipment was considered compensable. ‘Clothes’ referred to “apparel, not protective safety equipment which is generally worn over such apparel and may be cumbersome in nature”. In 2002, departing from the previous interpretations, Leppink goes on to write, the letter relied primarily on, inter alia, the definition of ‘clothes’ in 1982 editions of two dictionaries to support the view that ‘clothes’ included the protective equipment and therefore did not fall under a compensatory event. This view was reaffirmed in a 2007 opinion letter.

Since 2002, the courts have noted a vast divergence of definitions of clothes as defined by different dictionaries, dictionary publishers and editions. The issue surrounding the definition has been generally refined through court decisions such as IBP v. Alvarez 546 U.S. 21, 30 (2005) and Cargill Meat Solutions Wage and Hour litig., 2008 WL 6206795 (M.D. Pa. Apr. 10, 2008) and others, to take a more plain meaning approach to the definition of ‘clothes’. In general, the courts, especially with the Alvarez decision concluded that when protective equipment is worn by the employees because it is required by law, the employer, or is due to the nature of the job, the exemption under §203(o) does not apply.

The second issue with regard to this exemption is whether or not donning and doffing of clothing is a “principal activity”. These would be activities that are integral and indispensable to the job as held by the Supreme Court in the Alvarez case. Here, the Supreme Court ruled that activities occurring after the first principal activity and before the last principal activity are compensable as part of the “continuous workday”. Several court cases are in agreement that donning, doffing and washing could be considered principal activities that trigger the start of the continuous work day.

In summary, Leppink finds that “Changing clothing covered by §203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.” The long and the short of the clothing saga: if an employee wears protective gear that may be considered cumbersome in nature, review the statute and the Administrator’s Interpretation to determine if that gear is covered or exempted and if you are in compliance with the Fair Labor Standards Act for compensating the covered (no pun intended) employee.