The U.S. Department of Labor, Wage and Hour Division, issued its second Administrator’s Interpretation on June 16, 2010. Interpretation 2010-2

The AI concerns application of 29 U.S.C. 203(o).

In my opinion, this AI may very well have a significant impact in donning and doffing cases brought under the Fair Labor Standards Act (FLSA). In these cases, workers seek to be paid for time spent donning and doffing protective/sanitary gear, for example, and for time spent walking to the worksite.

In some circumstances, however, 29 U.S.C. 203(o) permits employers to not pay workers for time spent donning and doffing protective/sanitary gear and for time spent walking to the worksite.

Specifically, an employer can avoid paying for donning and doffing time, if the employer establishes that the workers are changing into “clothes” and that the employer and the workers’ union have expressly agreed to exclude such time as being compensable or a custom or practice exists between the employer and the union regarding the non-payment of time.

Many court cases recently have discussed what constitutes “clothes” as that term is defined at § 203(o).

AI 2010-2 defines the term “clothes” as used in § 203(o) in a narrow fashion as intended by Congress and rejects Opinion Letters issued by the DOL during the Bush Administration, which had greatly expanded the definition of “clothes”. Before the Bush Administration, the DOL had interpreted the term “clothes” in a narrow, pro-worker fashion that is consistent with the purpose and remedial scope of the FLSA. Thus, in my opinion AI 2010-2 restores the status quo.

Also, AI 2010-2 further states that clothes changing activity, which is covered by § 203(o), may constitute a principal activity under the FLSA. Accordingly, for example, walking time, which follows clothes changing activity covered under § 203(o), may be compensable even if the time spent changing clothes is not compensable.