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Administrator’s Interpretation No. 2010-2 - page 3 / 5





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industry, and other industries where protective equipment is required by law, the employer, or the nature of the job.

In recent years, several courts have adopted a “plain meaning” of the term “clothes”—one that is more faithful to the legislative intent behind the Fair Labor Standards Act and consistent with the 1997, 1998 and 2001 Wage and Hour opinion letters. In 2005, the Supreme Court held that time spent walking between the locker rooms where meat processing workers donned their protective equipment and the production area was compensable. IBP v. Alvarez, 546 U.S. 21 (2005). While the parties did not appeal the issue to the Supreme Court, the Ninth Circuit concluded in Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005), that protective equipment does not fit within the definition of “clothes” under § 203(o), thereby making compensable the time workers spend donning and doffing that equipment. Recognizing the “doctrinal, statutory, and legislative lacunae” that surrounded § 203(o)’s interpretation, the Ninth Circuit rejected the 2002 opinion letter and instead “[gave] the relevant language its ‘ordinary, contemporary, common meaning.’” Id. at 904; accord Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994).

Following Alvarez’s lead, three district courts have concluded that time spent donning and doffing protective equipment worn by meat packing employees is a compensable activity. See In re Cargill Meat Solutions Wage & Hour Litig., 2008 WL 6206795 (M.D. Pa. Apr. 10, 2008) (protective equipment worn by meat processing employees was not clothing under § 203(o)); Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 868 (W.D. Wis. 2007) (“donning and doffing of safety and sanitation equipment on the work site” not covered by § 203(o)); Gonzalez v. Farmington Foods, Inc., 296 F. Supp. 2d 912 (N.D. Ill. 2003) (donning and doffing of “sanitary and safety equipment,” including helmet, smock, plastic apron, arm guard, belly guard, plastic arm sleeve, a variety of gloves, a hook, knife holder, a piece of steel to straighten the edge of a knife blade, and knives, does not constitute “changing clothes” under § 203(o)); see also Spoerle v. Kraft Foods Global, Inc., 626 F. Supp. 2d 913 (W.D. Wis. 2009).3 It is the opinion of the Administrator that it is the analysis set out in these court decisions that is most consistent with the statutory language and adheres most closely to the guidance provided by the legislative history.

Finally, the 2002 opinion letter further supported its determination that the equipment worn by meat packing employees is clothing by referring to cases and regulations that include “face shields” and “impermeable gloves” as “protective clothing.” Insofar as § 203(o) and its legislative history refer only to “clothes”—and not to “protective clothing”—these references shed little light on the statutory meaning of the term “clothes” other than to illustrate that “clothes” and “protective clothing” are different.

3 Since 2002, two appellate courts have concluded that the word “clothes” under § 203(o) includes the equipment donned and doffed by workers in poultry processing plants. See Sepulveda v. Allen Family Foods, Inc., No. 08-2256 (4th Cir. Dec. 29, 2009) and Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007); see also Allen v. McWane Inc., 593 F.3d 449, 2010 WL 47919 (5th Cir. Jan. 8, 2010) (protective gear worn in manufacturing plant constitutes “clothes” under section 3(o)). Although the rationale on which these opinions are based may not be consistent with the views expressed here, and we do not agree that all of the gear worn by the workers in those cases qualifies as clothes under § 203(o), those decisions were rendered in the context of the donning and doffing of lighter gear which was, in large part, different from the protective equipment that was the subject of the 1997, 1998, and 2001 opinion letters.


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