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July 29, 2010
'What Are Clothes?', DOL Addresses FLSA Issue
The above question is important to the interpretation of a much-argued section of the Fair Labor Standards Act. And, the Department of Labor recently issued a new Administrator's Interpretation Letter to revisit the crucial definition of clothes in relation to employees' pay.

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What were ‘clothes’ in 1949? The contentious, often-litigated issue is whether, when employees are required to change from street clothes into uniforms or put on extensive protective gear before beginning work each day—and to remove that gear or uniform at day’s end—they deserve to be paid for those activities. The tasks are usually referred to as “donning and doffing.”

The new letter’s author, Deputy Administrator Nancy Leppink, noted that the most recent FLSA amendment to the section in question was in 1949. At that time, she wrote, what Congress had in mind were the clothes that bakery workers changed into and took off back then. And, some courts have ruled recently that police officers or other employees who are required to wear uniforms are, in fact, changing clothes—either at home or at work—and need not be paid for the time. But the kinds of protective gear commonly used in poultry and other meat-processing plants simply were not envisioned in the 1940s. And, a 2002 opinion letter on the topic muddied the waters, Leppink said, by classifying much of that gear as ‘protective clothing.’

In an important 2005 ruling by the Supreme Court, workers at IBP meat-packing plants were found to be compensable for time they spent walking between gear-donning/doffing areas to production lines. The 9th Circuit Court of Appeals (AK, AZ, CA, HI, ID, MT, NV, OR & WA) then ruled that those same workers were not donning “clothes” in the way Congress meant the term, so they were to be paid for their time spent putting on protective gear. As Leppink wrote, FLSA’s “exclusion of ‘changing clothes’” from compensable time “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.” 

Some opinion letters differed. In this new letter, Leppink essentially reversed several opinion letters issued during the Bush administration, particularly that of 2002, deeming much meat-packing gear as ‘protective clothing.’ That led to rulings by the 4th Circuit (MD, NC, SC, VA & WV)(2009), the 11th Circuit (AL, FL & GA)(2007), and the 5th Circuit (LA, MS & TX)(2010) against paying workers for donning and doffing in poultry-processing plants. A 2007 letter answered the question the same way. But this latest letter reaffirms the stance that DOL took in 1997, 1998, and 2001. We can hope this letter will quell further lawsuits on the issue for the time being.

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