Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The United States Department of Labor today released a new "Administrator's Interpretation" concerning the donning and doffing (or, in plain English, typically putting on and taking off) of clothing at the beginning and end of each workday.  You can download the notice here.  Under the FLSA, “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA.

In its new interpretation, the DOL has redefined the definition of "clothes" to exclude protective equipment required by law.  As a practical matter, this means that if employees have to put on or take off certain protective gear to comply with safety laws, for example, the employee must be compensated for the time spent doing that task.  If they are just putting on or taking off a uniform, for example, different rules would apply and it would likely fall within the exemption to the FLSA stated above. 

This changes what the most recent guidance had been from the DOL:

Based on its statutory language and legislative history, it is the Administrator’s interpretation that the § 203(o) 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 interpretation reaffirms the interpretations set out in the 1997, 1998 and 2001 opinion letters and is consistent with the “plain meaning” analysis of the Ninth Circuit in Alvarez. Those 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.

The DOL has also indicated that changing clothes can be a principal activity which means that any walking or waiting that occurs after that time period before the employee "officially starts work" will actually be treated as part of the continuous workday (and thus deserving of compensation):

Consistent with the weight of authority, it is the Administrator’s interpretation that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable. The Administrator issues this interpretation to assist employees and employers in all industries to better understand the scope of the § 203(o) exemption.

(Thanks to my colleague, Jon Orleans, for the tip; Photo Courtesy of Library of Congress)

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The United State Department of Labor has begun issuing administrator interpretations, which are intended to provide guidance to employers and employees on various issues from time to time. They have not been used n the recent past, but a new one yesterday shows that this is changing.

Specifically, the DOL has released an interpretation of exhisting law indicating that it views mortgage loan officers now to be non-exempt employees under the Fair Labor Standards Act, instead of exempt employees under the administrative exemption of the FLSA. This letter reverses two previous Administrator Letters on this subject.

Various blogs have discussed this finding including The Word on Employment Law and Washington Employment Law Update,

And as noted by the Washington Labor & Employment Wire this represents a policy shift not only in the law but what process the DOL will be using going forward:

WHD will now issue Administrator Interpretations intended to be “general interpretations of the law and regulations, applicable across-the-board to all those affected by the provision in issue.” In response to requests for opinion letters, WHD will provide “references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented.”

So who does this cover? According to the DOL:

This Administrator’s Interpretation applies to employees who spend the majority of their time working inside their employer’s place of business, including employees who work in offices located in their homes, rather than mortgage loan officers who are customarily and regularly engaged away from their employer’s place of business. It also applies to employees who do not spend the majority of their time engaging in “cold-calling”, contacting potential customers who have not in some manner expressed an interest in obtaining information about a mortgage loan. However, because many of the duties of all mortgage loan officers are similar, cases arising in these other contexts are referred to for guidance and cited in this interpretation.

For employers in this area, this new guidance should demand your immediate attention. if you have employees who may be covered by this guidance, it is important to not only identify those individuals but also seek legal guidance on how to make any necessary changes. 

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