Department of Labor's Wage and Hour Division Provides Answers, Raises New Questions

When Must a Company Pay for Time Spent Donning and Doffing Uniforms? Even If Time Spent Changing into a Uniform Is Itself Non-Compensable, Does Changing Clothes Mark the Start of a "Continuous Workday"?

Companies that require their employees to wear uniforms or protective equipment face a number of complicated issues: Is time spent donning and doffing required uniforms and equipment compensable under the Fair Labor Standards Act ("FLSA")? If so, can the subject be negotiated with a different result through a collective bargaining agreement ("CBA")? What if the workforce is not represented by a union? In the end, does the donning of required uniforms or equipment qualify as a "principal activity" under the Portal to Portal Act, such that subsequent time (even if spent waiting to be engaged or traveling to the worksite) must be paid?

The Department of Labor's Wage and Hour Division ("WHD") has wrestled with these questions in Opinion Letters on five separate occasions, by different Administrators -- most recently this past Wednesday, June 16, 2010 -- underscoring the complexity of this seemingly straightforward topic. As is often the case, the source of the ambiguity is the FLSA itself. Section 3(o) of the FLSA provides that time spent "changing clothes . . . at the beginning or end of each work day" is excluded from compensable time under the FLSA if the time is also excluded from compensable time under the terms of a CBA. 29 U.S.C. § 203(o). In other words, from a regulatory perspective, organized employers do not have to compensate their employees for time spent changing clothes if that understanding is spelled out in a CBA. But what exactly qualifies as "clothes"? After going back and forth on the issue, the WHD has now stated that protective equipment is not clothing and, therefore, donning and doffing protective equipment does not fall within the exception for changing clothes. This decision represents a 180-degree shift from the WHD's earlier position that donning and doffing protective equipment could be excluded from compensable time under section 3(o). The change in position brings the WHD interpretation in line with the prevailing case law, including the Ninth Circuit's decision in Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir. 2003).

Furthermore, there is the issue of whether donning and doffing a required uniform -- even if a potentially non-compensable activity itself -- or protective equipment signals the start and end of the compensable workday. Generally speaking, the Portal to Portal Act renders non-compensable certain activities that occur before or after the "principal activities" which the employee is engaged to perform. 29 U.S.C. § 254(a). Since the Supreme Court's decision in IBP v. Alvarez, 546 U.S. 21, 30 (2005), it has been clear that donning a uniform or protective gear can be a "principal activity." This means that donning a uniform or protective gear may not only be compensable itself, but also that it may trigger the start of the "continuous workday," such that the employee must be paid until she removes the uniform or protective gear. But what if changing one's clothes has been made non-compensable under section 3(o) and an appropriate CBA? Does that affect the "principal activity" analysis?

Prior to the June 16 Opinion Letter, the WHD's position was that donning and doffing required uniforms or protective equipment, when non-compensable under section 3(o), could not amount to a "principal activity." That is no longer the case. Under the WHD's current interpretation, changing into or out of a required uniform or protective equipment may be a "principal activity" regardless of whether it falls within the exception created by section 3(o).

So what does all this mean in practical terms? An organized employer that requires its employees to wear protective gear must pay them for the time spent donning and doffing such gear, which obligation cannot be avoided through collective bargaining or a CBA. An organized employer may, however, negotiate a CBA that avoids compensating its employees for donning and doffing traditional uniforms (i.e., uniforms that do not include protective gear). A non-union employer, on the other hand, likely must compensate employees in both situations because section 3(o) is generally unavailable in the absence of a CBA.

Complexity arises from the WHD's conclusion that changing into or out of a required uniform may be a "principal activity" regardless of whether it falls within the exception created by section 3(o). Under the Portal to Portal Act and related jurisprudence, a "principal activity" is always compensable work; it is only employee activities before and after "principal activities" that are non-compensable under the Portal to Portal Act. Yet, despite that rule, the WHD suggested that changing clothes may be a non-compensable "principal activity." See Administrator's Interpretation No. 2010-2 at 5 ("Consistent with the weight of authority, it is the Administrator's interpretation that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable."). This will strike many in the labor-and-employment field as an oxymoron: How can a "principal activity" required by the employer be non-compensable? If this interpretation holds, donning a uniform could itself be a non-compensable "principal activity" that triggers the start of a "continuous workday" -- at least for union employers.

But the situation could be worse for employers with non-union workforces. Section 3(o) is generally not available to these employers. As a result, these employers must always pay for time spent donning and doffing a uniform whenever that time would otherwise be considered compensable work under the FLSA. Although the WHD did not directly mention non-union employers in the Opinion Letter, it may have opened the door to claims that non-union employees should be paid for donning and doffing uniforms and protective equipment -- even if they put them on and take them off outside of the workplace, such as at home -- and all time in between. Time will tell whether this is a simple oversight or a strategic decision by the WHD to benefit organized employers over non-union employers.

For advice on these and other issues raised by the Opinion Letter -- and to determine how you can best comply with the FLSA and the Portal to Portal Act -- please contact one of the attorneys listed below or your regular Crowell & Moring contact.