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Department of Labor Finds that Employees who Wear Safety Equipment Must be Paid to Don and Doff that Equipment

On June 16, 2010 the U.S. Department of Labor (DOL) issued Administrator's Interpretation No. 2010-2, Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), reversing two prior DOL opinions relating to under what circumstances employees should be paid for time spent donning and doffing uniforms, and the Supreme Court's ruling in IBP v. Alvarez. The Department of Labor concluded that Personal Protective Equipment such, but not limited to, arm guards, protective aprons and hard hats, which are required by the employer to be worn or as a result of some regulation, generally do not constitute clothing within the meaning of Section 3(o).

23 U.S.C. 203(o) allows employers to avoid paying its employees for time spent donning and doffing clothing, if the employees are subject to a collective bargaining agreement, and the Union has acquiesced to such time being non-compensable either by agreement or by custom and practice. Section 203(o) generally does not apply to non-union employees, and non-union employees generally must be paid for time spent changing clothes.

The result is that an employee does not get paid for the time spent putting on or removing required safety equipment at the beginning and end of a work shift if an employee's union agreed with the employer that workers would not be paid for that time. Also, an employee does not get paid for this time if custom or practice in an industry was or has been to exclude this activity from an employee's compensation.

The DOL further concluded that even if clothes changing activities are considered non-compensable within the meaning of Section 203(o), any time spent walking to and from employees' workstations generally should be compensated, because "...clothes changing covered by section 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable."

In some instances, the process of donning and doffing materials, equipment and garb, and traveling to and from one's workstation can amount to thirty minutes a workday or more, resulting in two and a half hours or unpaid work time per week. Such uncompensated time can result in a windfall to the employer, saving the company vast sums of money which it would otherwise be obligated to pay to its employees.

Frequently, the employer provides a changing room for employees to put on and take off safety equipment. The employee walks to a time clock very close to his or her work station and clocks in to start the workday. This deprives the employee of the time putting on safety gear and walking to the workstation.

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