FLSA2007-10 — Changing clothes in the meat packing industry and section 3(o) * This letter has been withdrawn. See Administrator Interpretation 2010-2 .

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2007-10
This letter has been withdrawn. See Administrator Interpretation 2010-2.
May 14, 2007

Dear Name*:

This is in response to your request on behalf of your client, Name*, for an opinion regarding
the application of section 3(o) of the Fair Labor Standards Act (FLSA) to employees in the
meat packing industry. Specifically, you request an opinion on the following questions:

(1) Whether, notwithstanding the opinion of the Court of Appeals for the Ninth Circuit in
Alvarez v. IBP, Inc. 339 F. 3d 894 (9th Cir. 2003), the Departm
ent of La
bor continues
to maintain the interpretation of section 3(o) of the Fair Labor Standards Act (FLSA),
29 U.S.C. § 203(o), set forth in the opinion letter issued by Administrator Tammy
McCutchen on June 6, 2002
FLSA2002-2?

(2) W
hether, outside states within the jurisdiction of the Ninth Circuit, Name* may
continue to rely on the June 6, 2002 opinion letter as the basis for a “good faith”
defense under 29 U.S.C. § 259 against donning and doffing cl
aims at locations where
it has negotiated collective bargaining agreements that exclude equipment donning
and doffing time from compensable work time by the express terms or by custom and
practice under the collective bargaining agreements?

Section 3(o) of the FLSA excludes “any time spent in changing clothes or washing at the
beginning or end of each workday which was excluded from measured working time during the
week involved by the express terms of or by custom or practice under a bona fide collective-
bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203(o). In
promulgating this provision Congress plainly excluded activities covered by section 3(o) from
time that would otherwise be “[h]ours worked.” 29 U.S.C. § 203(o). Accordingly, activities
covered by section 3(o) cannot be considered principal activities and do not start the workday.
Walking time after a 3(o) activity is therefore not compensable unless it is preceded by a
principal activity.

After carefully reviewing the interpretation of section 3(o) set forth in Wage and Hour Opinion
Letter FLSA 2002-2 (June 6, 2002), it remains our view, based upon the statute and its
legisl
ative history, that the “changing clothes” referred to in section 3(o) applies to putting on
and taking off the protective safety equipment typically worn by employees in the meat packing
industry. As in our previous letter, we take no position on what constitutes a custom or practice
for purposes of excluding time under section 3(o), or on whether there is such a custom or
practice by any employers in your industry. As specified in the 2002 letter, this clothing
includes, among other items, heavy protective safety equipment worn in the meat packing
industry such as mesh aprons, sleeves and gloves, plastic belly guards, arm guards, and shin
guards.

The Ninth Circuit rejected the June 6, 2002 opinion letter in its decision in Alvarez v. IBP, Inc.,
339 F. 3d 894 (2003), but the issue was not addressed by the Supreme Court in IBP v. Alvarez,
126 S.Ct. 514 (2005). The Division has not changed its interpretation as a result of the circuit
court’s opinion and continues to believe that the opinion letter is correct for the reasons stated
therein. Therefore, you may continue to rely on the letter for practices outside states within the
jurisdiction of the Ninth Circuit. Of course, we will monitor any case law that addresses this
issue in other courts, and may reconsider our interpretation if case law so requires.

This opinion is based exclusively on the facts and circumstances described in your request and
is given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in
your letter might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private litigation concerning
the issue addressed herein. You have also represented that this opinion is not sought in
connection with an investigation or litigation between a client or firm and the Wage and Hour
Division or the Department of Labor.

We trust the above information is responsive to your inquiry.

Sincerely,

Paul DeCamp
Administrator

Note: *The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C.
552 (b)(7).

Page 2 of 2