FLSA - Seventh Circuit Gets It Wrong

The Seventh Circuit issued its opinion in Spoerle v. Kraft Foods Global, Inc., yesterday, and concluded that protective gear is not "clothing" under §203(o) of the Fair Labor Standards Act.  The decision is important because time spent in changing clothes at the beginning or end of each workday may be excluded from measuring the time spent working during the week pursuant to custom or practice under a collective-bargaining agreement.  Unfortunately, this opinion conflicts with a Department of Labor interpretation of the Fair Labor Standards Act §203(o) which was issued after oral argument was heard and before the Seventh Circuit issued its decision.

On June 16, 2010, the Department of Labor concluded that time spent donning and doffing protective equipment is compensable activity.  In particular, the Department of Labor rejected the rationale in Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir. 2009), which held that protective gear is not "clothing" under §203(o), and which was adopted by the Seventh Circuit.  The interpretation by the Department of Labor would not have changed the outcome of the case since state law set a higher standard and required that time spent donning and doffing safety gear be compensated; nevertheless, it is interesting to see such an embarassing blunder by the Seventh Circuit, which failed to discovery a relevant Department of Labor interpretation issued more than a month before the Seventh Circuit voiced a contrary opinion.