Impact of DOL’s June 16, 2010 Interpretation of FLSA Section 203(o)

In its June 16, 2010 Interpretation, the DOL opined that employers with a unionized workforce can no longer negotiate with the workers’ union to exclude time spent donning and doffing “protective equipment” from paid work time, reversing two opinion letters issued during the Bush Administration on June 6, 2002 and May 14, 2007.  For nearly a decade, unionized employers have relied on the DOL’s June 6, 2002 opinion letter which concluded that “protective equipment,” including the mesh equipment and plastic guards typically worn by meat packing employees, fell within the definition of “clothes” under § 203(o), a position which the DOL reiterated in an opinion letter dated May 14, 2007.  According to the DOL’s “new” Interpretation, however, the term “clothes” does not include protective equipment worn by employees in the meat packing industry, and in other industries where employees are required to wear similar protective equipment.

In this Interpretation, the DOL stated that it was returning to an opinion it expressed first in 1997 under the Clinton Administration that the §203(o) exemption does not cover protective equipment.  Instead, according to the DOL, “clothing” means “apparel” like the clothes worn by employees in the baking industry in 1949.  Importantly, though, in a footnote, the DOL noted that its opinion may be at odds with three Circuit Court decisions holding that the equipment worn by employees in poultry processing plants is “clothing” under § 203(o).

In a second “about face” from its May 14, 2007 opinion, the DOL goes on to state that even if clothes changing time is excluded from paid time under §203(o), it may still be a principal activity that starts the clock for purposes of pay during the continuous work day.  Thus, any walk time and wait time that follows “clothes changing” must still be compensated, according to the DOL’s new view.  Significantly, the DOL warned that “[t]hose portions of the 2002 opinion letter that address the phrase “changing clothes” and the 2007 opinion letter in its entirety, which are inconsistent with this interpretation, should no longer be relied upon.”  (Emphasis added.)

Thus, the practical effect of this Interpretation is that employers can no longer rely on the 2002 and 2007 opinion letters to establish the “good faith defense,” which is a complete bar to liability under FLSA §259.  That is not to say, however, that employers cannot still argue that §203(o) applies to exclude pay for donning and doffing the protective clothing and equipment worn by their union employees. A number of federal courts have interpreted “clothes” more broadly than the DOL’s June 16, 2010 Interpretation.  Moreover, given the DOL’s vacillation on this topic, from 1997 to 2002 to 2010, deference from the courts to the DOL’s latest opinion as expressed in this Interpretation may be less likely.  Nevertheless, the DOL’s June 16, 2010 Interpretation makes future reliance on Section 3(o) to exclude “clothes changing” time much riskier.

By Joseph Tilson and Jeremy Glenn, Meckler Bulger Tilson Marick & Pearson LLP

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