Time spent in donning protective equipment required to be worn by law is compensable because such gear does not constitute “clothes” under the clothes changing exemption of the Fair Labor Standards Act, according to a recent Wage-Hour Administrator Interpretation.

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, the Administrator notes. Based on statutory language and legislative history, the Administrator says that the 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 previous interpretations set out in 1997, 1998 and 2001 wage-hour opinion letters; and states that portions of a 2002 opinion letter that address the phrase “changing clothes” and a 2007 opinion letter which were inconsistent with this interpretation, “should no longer be relied upon.”

Further, the interpretation indicates that clothes changing can be a “principal activity” that may start a “continuous workday” in terms of compensable time worked.