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.
Section 3(o) Clothes Changing can be a Principal Activity
Generally, donning and doffing, which may include clothes changing, can be a “principal activity” under the Portal to Portal Act, 29 U.S.C. § 254. IBP v. Alvarez, 546 U.S. 21, 30 (2005). The Supreme Court in Alvarez explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. Alvarez , 546 U.S. at 37. Thus time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the “continuous workday” and is compensable under the FLSA. Id. at 37. We now consider whether changing clothing that is made non-compensable by § 203(o), remains a principal activity that may start the continuous workday.
The leading case, which addresses this issue, is Figas v. Horsehead Corp., 2008 WL 4170043 (W.D. Pa.). The Figas court looked to the plain language of § 203(o). It noted that the section excludes “any time spent in clothes changing or washing at the beginning or end of each workday.” Id. at *19, quoting 29 U.S.C. § 203(o) (emphasis in original). The court explained that under this statutory language “the excluded time is considered to be a part of the workday.” Id. (emphasis in original). Because activities that are within the workday are compensable under the Portal Act, the language of § 203(o) supports the compensability of the activities that follow clothes changing. The Figas court observed that § 203(o) “does not make donning and doffing activities any less ‘integral and indispensable’ to the employees’ performance of their daily tasks. In other words, the character of donning and doffing activities is not dependent upon whether such activities are excluded pursuant to a collective-bargaining agreement.” Figas, 2008 WL 4170043 at * 20 (emphasis in original). To hold otherwise would expand the § 203(o) exclusion well beyond the language of the statute. Id.
The 2007 opinion letter, however, stated that § 203(o) activities cannot be principal activities. Wage and Hour Opinion Letter FLSA2007-10. The Tennessee district court in Sisk v. Sara Lee Corp. agreed, relying mainly on that opinion. Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001, 1011 (W.D. Tenn. 2008). The court observed that it might be considered odd to trigger the continuous workday with a non- compensable act, where, for example, it might take 30 minutes to travel from the locker room to a worksite. Another district court concluded that because clothes changing covered by § 203(o) is excluded from hours worked, it is not a principal activity. Hudson v. Butterball, LLC, 2009 WL 3486780, *4 (W.D. Mo.).
The weight of authority is to the contrary, with the majority of district courts rejecting the opinion letter. The Figas court noted that the “conclusory” 2007 opinion letter “provides no basis for concluding that a ‘principal activity’ somehow becomes ‘preliminary’ or ‘postliminary’ merely because employees need not be compensated for the time taken to perform it.” Id. at *19. Other courts are in agreement with Figas. In Re Tyson Foods, Inc., 2010 WL 935595 *10 (M.D. Ga.) (“§ 203(o) only relates to the compensability of time spent donning, doffing, and washing of the person and that does not mean that 203(o) tasks cannot be considered principal activities that start the continuous workday.”); Arnold v. Schreiber Foods, Inc., 2010 WL 455248 at * 15, n.15 (M. D. Tenn.) (“§ 203(o), by its terms, applies