That’s likely how many employers feel as they try to deal with conflicting regulatory and judicial opinions on when an employee’s change of clothes (donning and doffing) is compensable under the Fair Labor Standard Act (FLSA).
The whole donning/doffing issue has become quite messy; some might say as messy as Oscar Madison. Courts have been split on this issue, and judges point to DOL’s inconsistent guidance as the cause.
The FLSA language at issue, in Section 203(o), says 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.
DOL’s Wage and Hour Division (WHD) has repeatedly changed its official position on what constitutes “changing clothes” and whether or not employees should be paid for it.
- 1997 — WHD says clothes don’t include protective gear, making putting on gear compensable. Opinion Letter Dec. 3, 1997 (1997 WL 998048)
- 2002 — WHD reverses its opinion, and announces that changing clothes includes protective gear, so it’s noncompensable. DOL Opinion Letter June 6, 2002
- 2007 — WHD declines to alter its interpretation in light of the 9th Circuit’s Alvarez decision DOL Opinion Letter May 14, 2007
- 2010 — WHD reverts to its previous interpretation, determining that FLSA Section 203(o) 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.
WHD’s flip flopping is so bad that one appellate court recently chose to just ignore the agency’s interpretations on this issue.
In Salazar v. Butterball (10th Cir., July 5, 2011), a case involving a CBA, the 10th Circuit ruled that time spent donning and doffing is noncompensable under the FLSA, and it saw no distinction between regular clothes and protective gear. The court added that differing interpretations of “changing clothes” has left the term ambiguous and that “The Wage and Hour Division has repeatedly shifted its position when asked to interpret the meaning of “changing clothes,” going on to say ”we do not find the agency’s current position particularly well-reasoned.”
Just a few weeks earlier, in a case not involving a CBA, the 4th Circuit found that employees should be paid for time spent changing into required protective gear at a poultry processing plant (because doing so is an “integral and indispensable part of the employee’s principal activities”). See Perez v. Mountainair Farms (4th Cir., June 7, 2011)
See pages 10 and 11 from the Salazar decision for more on DOL’s flip-flopping. See pages 9 and 10 in this 6th Circuit opinion from 2010 for even more.