Summary of a Recent
Judicial
Development in
Labor
Compensation Under the FLSA for Donning and
Doffing Protective Gear Addressed
Elizabeth Smith McKinneyNational AgLaw Center Graduate Assistant
Summary of Decision
In IBP, Inc. v. Alvarez, Nos. 03-1238, 04-66, 2005 WL 2978311 (U.S. Nov. 8, 2005), the Supreme Court of the United States held that time workers' spent walking to the production area after donning protective gear and walking from the production area to doff the protective gear was not an exclusion within the Portal-to-Portal Act of 1947, 29 U.S.C. § 251-262, and was compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201-219. See id. at *9. The Court further held that time spent waiting to don the protective gear was a preliminary activity, which is an allowable exclusion within the Portal-to-Portal Act and therefore outside of the scope of the FLSA. See id. at *11.
Background
The present case was a consolidation of two cases, one from the Court of Appeals for the Ninth Circuit, IBP, Inc. v. Alvarez, 339 F.3d 894 (9th Cir. 2003), and the other from the Court of Appeals for the First Circuit, Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004). See id. at *2. The Ninth Circuit case originated as a class action suit by employees against a large meat producer, IBP, Inc., with a slaughter and processing plant in Washington. See id. at *5. The First Circuit case originated as a class action suit by employees against a poultry processing plant, Barber Foods, Inc., in Maine. See id. at *9.
Issues
The Court considered two principal issues. First, it considered "whether the time employees spend walking between the changing area and the production area is compensable under the FLSA." Id. at *2. Next, the Court considered "whether the time employees spend waiting to put on the protective gear is compensable under the statute." Id.
Analysis and Holdings
The Court explained that FLSA was enacted in 1938 to require, inter alia, employers "engaged in the production of goods for commerce" to pay employees a minimum wage and time and a half the regular pay rate for work time exceeding 40 hours. Id. at *3. The Court noted that it had decided a number of cases under FLSA in the past, including Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), where it was held that "the time . . . spent by employees walking from time clocks near the factory entrance gate to their workstations must be treated as part of the workweek." Id. (citing Anderson, 328 U.S. at 691-92). Congress responded to the Anderson decision by amending the FLSA with the Portal-to-Portal Act in 1947. See id. The amendment excluded two activities from compensation under the FLSA: "walking on the employer's premises to and from the place of performance of the principal activity of the employee, and activities that are ‘preliminary or postliminary' to that principal activity." Id.
The Court noted that neither the FLSA nor the Portal-to-Portal Act define the terms, "work," "workday," or "workweek". See id. at *4. It relied on its own precedent as well as Department of Labor regulations at 7 C.F.R. § 790.6 to define these terms along with "principal activity" within the continuous workday rule. See id. The Court noted these regulations have been in effect since 1947 and were unchallenged by the parties litigants in the present case. See id.
The Court explained that in Steiner v. Mitchell, 350 U.S. 247 (1956), it addressed whether battery plant workers should be compensated for time spent changing clothes and showering and held the activities to be an "integral and indispensable part of the principal activities" and compensable under the FLSA. Id. In the instant case, the Court relied on Steiner to conclude that the doffing and donning of unique protective gear was "integral and indispensable" to the principal activities of the employees, thus the activities were themselves "principal activities" and a trigger for the beginning and ending of the workday. See id. at *9. The Court rejected the argument of the Ninth Circuit's petitioner IBP, who attempted to introduce an intermediate category of activity that may be "sufficiently ‘principal' to be compensable, but not sufficiently principal to commence the workday." Id. at *7.
The Court next considered the issue of whether "whether the time employees spend waiting to put on the protective gear is compensable under the statute." Id. The Court followed the same reasoning it used to decide the first issue and found that the pre-donning waiting was "preliminary" or "two steps removed from the productive activity on the assembly line" and therefore not compensable under FLSA. Id. at *11.
The case was decided on November 8, 2005; this summary was posted Dec. 2, 2005.