Further complicating the issue is the fact that the Department of Labor (DOL), which oversees the Fair Labor Standards Act (FLSA), has flip-flopped "Romney Style" on the issue. Politics are clearly at play, with the DOL interpreting the FLSA 203(o) exemption of changing clothes from compensable time differently depending on the administration. Under Presidents Clinton and Obama, the DOL opinion was that "clothing" did not include PPE and thus the time spent donning and doffing could be deemed compensable. However, under President Bush the DOL took a broad view of the term clothing and considered PPE as falling under the definition of clothing and making the time spent non-compensable.
Ignoring the legal battle for a minute, let's look at the practical consequences. If the employees win the battle and the time is considered compensable, what is the probable result? The immediate result is that the employees will receive compensation for this time (which could be as much as another 2-3 hours per week of compensable time). Employees involved in litigation might even receive back wages for the past 2-3 years for their donning and doffing time, a check that could make for a nice summer vacation for the family.
But what's next? After the initial thrill of victory, reality will kick in. That reality will likely include the employer taking steps to make sure it maintains its profit margin. How will the employer do this while having to consider paying employees for an additional 2-3 hours per week? I am glad you asked that question. The employer will likely do one of three things:
1. Cut hourly wages to get back the money spent on employees' changing clothes time
2. Cut hours to recoup the money that way
3. Cut headcount, so current employees will have to work harder to keep up with production
In the end, who actually wins? I would venture to say no one wins. Well, perhaps the attorneys litigating these cases, but no one else. And some of the plaintiff attorneys, like generals firing up their troops for the battle, are surely not fully informing these manufacturing employees of the long-term ramifications of a victory. As a result, they embark on a journey towards winning a battle but losing a war, or to put it another way, failing to see the full forest through the plentiful trees.