FLSA: New Supreme Court Ruling

In Tum, however, the First Circuit later held that workers should not be paid for time spent waiting to begin work after donning safety equipment. The respondent in Tum, an operator of a poultry processing plant, asked that the opinion in the court below, compensating its production employees for walking time occurring after the beginning of the employee's first principal activity and before the end of the employee's last principal activity, be overturned. Further, the employee petitioners in the Tum case appealed the Court of Appeal's decision denying them compensation for the waiting time associated with the donning and doffing of protective gear.

Supreme Court

In reaching its conclusion, the Supreme Court reasoned that the text of the statute, previous Supreme Court precedent, and relevant federal regulations all support the conclusion that the walking at issue is compensable under the FLSA. Congress passed the Portal-to-Portal Act in 1947 after the Supreme Court ruled that the term “workweek” in the FLSA included the time employees spent walking from time clocks to their workstations in a factory. Section 4(a) of the Portal-to-Portal Act excludes from FLSA coverage certain activities performed before or after an employee's principal job activities. The term principal activity embraces all activities that are an integral and indispensable part of the principal activities.

The Court held that because donning and doffing gear that is “integral and indispensable” to an employees' work is a “principal activity” under the statute, the continuous workday mandates that the time workers spend walking to and from the production floor after donning and before doffing, as well as time waiting to doff, are not affected by the Portal-to-Portal Act and are covered and compensable under the FLSA.

The Court did state that Section 4(a) excludes from the FLSA's scope the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. This waiting period qualifies as a preliminary activity and is too removed from the principal activities to be covered. The court did not consider whether the time spent actually donning and doffing required safety equipment is compensable. It limited its review to the walking and waiting time issue.

While the holding of this case may have limited application beyond its specific facts and the applicable statutory provisions, it reflects courts' increased attention to the circumstances where employees must be compensated for “working off the clock.”

Federal Regulations Support Holding

Writing for the Court, Justice John Paul Stevens noted that “regulations adopted by the Secretary of Labor in 1947 support respondents' view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday,” referring to 29 C.F.R. Section 790.7(c). “Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line.”

The Court rejected the employers' argument that a footnote in the original Portal-to-Portal Act implementing regulations — which said that paying employees to change clothes “does not necessarily mean” they are compensated for walking to their workstation-meant compensation for walking was foreclosed. While the footnote “does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be,” the Court held that the uncertainty was inconsistent with the employers' position that walking was invariably excluded.

Although the Court agreed with the plaintiffs that time spent walking was compensable under the FLSA, it found on the narrower question of compensation for time spent waiting to change into safety gear that the defendant-employers had the better argument.

The decision was unanimous.

In its first employment-related decision of this term, the U.S. Supreme Court held in IBP, Inc. v. Alvarez that the time food-processing workers spend walking between changing and production areas is compensable under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act. IBP, Inc. v. Alvarez, 2005 WL 2978311 (U.S., Nov. 8). The Court's ruling disposed of appeals from both the Ninth and First Circuits ( see IBP Inc. v. Alvarez , 339 F.3d 894 (9th Cir. 2003) and Tum v. Barber Foods Inc. , 360 F.3d 274 (1st Cir. 2004)).

Split Among Circuit Courts

This decision resolves a split among the circuit courts. Previously, the Ninth Circuit held in Alvarez that workers at a meatpacking plant had to be paid from the moment they began putting on safety gear required for their jobs until they took off the gear. The petitioner in Alvarez, a large producer of fresh beef and pork, asked that the Supreme Court overturn the Court of Appeals decision holding that the time spent by its production workers in walking between locker rooms and the production floor before and after their assigned shifts in order to don and doff protective gear is not excluded from the scope of the FLSA under the Portal-to-Portal Act.

In Tum, however, the First Circuit later held that workers should not be paid for time spent waiting to begin work after donning safety equipment. The respondent in Tum, an operator of a poultry processing plant, asked that the opinion in the court below, compensating its production employees for walking time occurring after the beginning of the employee's first principal activity and before the end of the employee's last principal activity, be overturned. Further, the employee petitioners in the Tum case appealed the Court of Appeal's decision denying them compensation for the waiting time associated with the donning and doffing of protective gear.

Supreme Court

In reaching its conclusion, the Supreme Court reasoned that the text of the statute, previous Supreme Court precedent, and relevant federal regulations all support the conclusion that the walking at issue is compensable under the FLSA. Congress passed the Portal-to-Portal Act in 1947 after the Supreme Court ruled that the term “workweek” in the FLSA included the time employees spent walking from time clocks to their workstations in a factory. Section 4(a) of the Portal-to-Portal Act excludes from FLSA coverage certain activities performed before or after an employee's principal job activities. The term principal activity embraces all activities that are an integral and indispensable part of the principal activities.

The Court held that because donning and doffing gear that is “integral and indispensable” to an employees' work is a “principal activity” under the statute, the continuous workday mandates that the time workers spend walking to and from the production floor after donning and before doffing, as well as time waiting to doff, are not affected by the Portal-to-Portal Act and are covered and compensable under the FLSA.

The Court did state that Section 4(a) excludes from the FLSA's scope the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. This waiting period qualifies as a preliminary activity and is too removed from the principal activities to be covered. The court did not consider whether the time spent actually donning and doffing required safety equipment is compensable. It limited its review to the walking and waiting time issue.

While the holding of this case may have limited application beyond its specific facts and the applicable statutory provisions, it reflects courts' increased attention to the circumstances where employees must be compensated for “working off the clock.”

Federal Regulations Support Holding

Writing for the Court, Justice John Paul Stevens noted that “regulations adopted by the Secretary of Labor in 1947 support respondents' view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday,” referring to 29 C.F.R. Section 790.7(c). “Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line.”

The Court rejected the employers' argument that a footnote in the original Portal-to-Portal Act implementing regulations — which said that paying employees to change clothes “does not necessarily mean” they are compensated for walking to their workstation-meant compensation for walking was foreclosed. While the footnote “does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be,” the Court held that the uncertainty was inconsistent with the employers' position that walking was invariably excluded.

Although the Court agreed with the plaintiffs that time spent walking was compensable under the FLSA, it found on the narrower question of compensation for time spent waiting to change into safety gear that the defendant-employers had the better argument.

The decision was unanimous.