New guidance issued by the Department of Labor should compel employers with workers who don specialized protective gear to review their policies and timekeeping systems to ensure that they are accurately recording the workday.

The effect of the new guidance may go beyond the time spent changing into and out of such gear to cover such activities as walking to work areas, waiting to go through security checkpoints, waiting for tools, and waiting for instructions, along with the corresponding activities at the end of the workday.

The new guidance changes the law on when the Fair Labor Standards Act requires that employees be compensated for time spent changing into and out of protective gear and addresses when these activities trigger the start and end of the workday. The new interpretation, issued on June 16, 2010, overturns Bush-era DOL opinion letters holding that employees need not be compensated for some time spent in such activities.

The FLSA generally requires employers to compensate employees for all time they are required or allowed to work. 29 U.S.C. § 203(g). Because the statute does not define "work," the courts and the DOL have weighed in with various interpretations of the types of activities that constitute compensable time. Whether employees should be compensated for time donning gear or clothing they are required to wear by their employer or by law has been a particularly difficult issue for the courts and DOL to resolve.

If you have questions about how the new DOL guidance might affect your operation or need assistance in reviewing your policies or timekeeping systems, please feel free to contact Shannon D. Farmer, at 215.864.8221 or, or any member of Ballard Spahr's Labor and Employment Group. 

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