WAGE-HOUR DIVISION REVERSES POSITION

           On June 16, 2010, the Obama Department of Labor’s Wage-Hour Division issued “Administrator’s Interpretation” No. 2010-2 which reverses the previous position of the DOL with respect to the proper interpretation of Section 3(o) of the Fair Labor Standards Act concerning “changing clothes.”  In 2002 and again in 2007, the DOL issued “Opinion Letters” which stated that the donning and doffing of safety clothing and equipment in the meat packing industry pursuant to a collective bargaining agreement should be excluded from compensable time.  Additionally, the 2007 Opinion Letter stated that the donning of safety clothing and equipment could not be considered the first principal act for determining the start of the continuous workday. 

             The June 16, 2010, Administrators Interpretation (equilivent to the previous Opinion Letters) returns to the 1997, 1998 and 2001 opinions that safety equipment worn over clothes is not “clothes” within the meaning of that word in Section 3(o) of the FLSA.  Additionally, the Administrative Interpretation states that whether or not the donning of safety equipment is compensable or not, the act would still constitute the first principal act for purposes of commencing the continuous workday.  The Administrative Interpretation can be found at   http://www.dol.gov/whd/opinion/adminIntrprtnFLSA.htm

By W. Bernie Siebert, Sherman & Howard LLC

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