Wednesday, June 16, 2010

Redefining Clothes - DOL Edition

Clothes were redefined today. I wish I could tell you I meant that it some ultra-trendy way involving French designers and possibly Mugatu... but sadly I don't. I mean it literally. I mean it in the nerdy kind of way that only a lawyer, in 5 pages of analysis, case citations, and federal statutes, can mean it. The Department of Labor issued an administrator's interpretation on Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), and the definition of "clothes."

First, why does the definition of "clothes" matter?
Section 3(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).
So, how did "clothes" change today? It no longer includes certain protective equipment.
[The] exemption 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.
This will effect the compensability of such donning and doffing (to use the hip FLSA lingo).

The administrator also concluded
[T]hat clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.
And that's your fashion update - FLSA DOL style.

For more info see Daniel Schwartz's take on Connecticut Employment Law Blog; and Ross Runkel's coverage on LawMemo.

Image: Nancy Leppink, Wage and Hour Deputy Administrator (and author of the interpretation that is the subject of this entry). Public Domain as work of the U.S. Government.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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