A few weeks ago, I posted on the new federal Department of Labor policy to now issue position papers, as opposed to responding to requests for opinion letters. On this subject, there has been a rash of cases, many of them class actions, on whether certain preliminary and postliminary activities related to putting on safety equipment and safety clothing is compensable work time. With the position issued on June 16, 2010, the US DOL has taken the position that it is in fact working time.  See Administrator’s Interpretation, 2010-2.

The position paper focused on whether safety equipment can be considered clothing, because under the FLSA, clothes changing is not compensable.  The DOL studied the precedent, mostly arising from the food industry, where employees are mandated (by health laws or agency requirements) to don and duff protective gear.  The agency reviewed earlier Opinion Letters it had issued and rescinded some which were not consistent with the current position paper.  In sum, protective clothing or gear that must be worn is an integral part of the employee’s job and is therefore compensable..

The position paper also addressed the issue of whether clothes changing (which is itself non-compensable) can be deemed a “principal activity” that starts an employee’s continuous work day. The agency ruled that such an activity may start an employee’s work day, meaning that all activities following that “start,” including walking to the work station, then are also compensable. The agency ruled that this activity can start the work day.  This occurs when the activity is deemed essential to the employee’s job.  This is an important ruling because it could require compensation to be paid, whether or not the clothes are safety-oriented or not.

The key issue for employers to focus on is what is the nature of the preliminary/postliminary activity and what is the relation to the main job.  The employer also need not be in the food processing industry to be impacted by this position paper.  For example, in a restaurant, if the employer requires cashiers to report ten minutes early and leave ten minutes late to balance their cash drawers, that activity will be deemed integral to the main job and therefore compensable.

These kinds of activities are likely engaged in by numerous employees, if they are engaged in at all.  This means that there will likely be found (if a class action is filed) a common, overall policy that applies to the activity, which is the necessary component to allow a court to find that a class exists.  Accordingly, employers must scrutinize the job functions of their employees as to whether any “work” or “preparation” is done before/after the main job and analyze the relationship between the two to determine compensability.

I am giving a Webinair on these issues on June 30, 2010. Learn more about the working time webinar.