DOL Redefines "Clothes" Under Federal Wage & Hour Laws; Now Excludes Protective Equipment Required by Law
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)
A few years ago, the 
ay, as well,” said Hawks-Ladds. “Generally, in our day and age, I would think that employers would lose the argument” that booting up isn’t part of the workday.
