U.S. Department of Labor Wage and Hour Division Washington, DC 20210
Administrator’s Interpretation No. 2010-2
June 16, 2010
Issued by DEPUTY ADMINISTRATOR NANCY J. LEPPINK
SUBJECT: Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), and the definition of “clothes.”
Section 3(o) of the Fair Labor Standards Act (FLSA) provides 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. 29 U.S.C. § 203(o). After a careful analysis of the statutory provision and a thorough review of the legislative history and case law, the Administrator is issuing this interpretation of the term “clothes” in § 203(o), and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues.
The Meaning of Clothes Changing Under Section 3(o)
The Administrator first considered whether protective equipment could be “clothes” under the § 203(o) exemption in a 1997 opinion letter. In that opinion letter the Administrator concluded that the time spent putting on, taking off and cleaning the protective equipment utilized in the meat packing industry was compensable and that the protective equipment did not constitute “clothes” under § 203(o). Wage and Hour Opinion Letter December 3, 1997. Recognizing that § 203(o) was an exemption that must be read narrowly, the 1997 opinion letter explained that the “plain meaning” of “clothes” as used in § 203(o) did not encompass protective equipment (e.g., mesh aprons, plastic belly guards, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts). Id. Instead, “common usage dictate[d] that ‘clothes’ refer to apparel, not to protective safety equipment which is generally worn over such apparel and may be cumbersome in nature.” Id. In 1998 and 2001, the Wage and Hour Division (WHD) reaffirmed this interpretation in two subsequent opinion letters. Wage and Hour Opinion Letter February 18, 1998; Wage and Hour Opinion Letter January 15, 2001.
In 2002, departing from the previous interpretations, the Administrator opined that “clothes” under § 203(o) included the protective equipment typically worn by meat packing employees. Wage and Hour Opinion Letter FLSA2002-2. The opinion letter relied primarily on, inter alia, the definition of “clothes” in 1982 editions of two dictionaries in support of this view. In 2007, the Administrator reaffirmed this position. Wage and Hour Opinion Letter FLSA2007-10.
Since 2002, courts have aptly noted the vastly divergent definitions of “clothes” that appear in a single dictionary, in different editions of a dictionary, and in different publishers’ dictionaries. Alvarez v. IBP, Inc., 339 F.3d 894, 904-05 n.9 (9th Cir. 2003) (single 1939 dictionary source supported both defendant’s and plaintiffs’ opposite positions on definition of “clothes” vis-à-vis § 203(o)), aff’d on other grounds, 546 U.S. 21 (2005); Sandifer v. United States Steel Corp., 2009 WL 3430222, at *5-6 (N.D. Ind. Oct.