The issue of whether time spent before and after “productive” activities constitute “hours worked” for purposes of the minimum wage and overtime provisions of federal law has long been a source of confusion for employers. In this issue of the Labor and Employment Group’s Views and Visions e-alert, we explain an important development in this area by spotlighting the recent decision of the United States Supreme Court in IBP Inc. v. Alvarez, 163 L. Ed. 2d 288 (2005). The United States Supreme Court consolidated two cases (Alvarez v. IBP, Inc. and Tum v. Barber Foods, Inc.) and handed down this unanimous decision on November 8, 2005. Generally, IBP Inc. analyzes whether certain work time is compensable under the Fair Labor Standards Act (“FLSA”).
The first case was appealed from the Ninth Circuit Court of Appeals, which covers California and eight other western states. In Alvarez v. IBP, Inc., the plaintiffs were a group of production workers employed at IBP, Inc. (“IBP”), in Pasco, Washington. IBP is a producer of meat products and employs production workers in its slaughter and processing division. In order to perform their job duties, all production workers are required to wear outer garments, hardhats, earplugs, gloves, sleeves, aprons, leggings and boots. Many of them also have to wear protective equipment consisting of metal aprons, vests, plexiglass armguards, and special gloves. IBP requires them to store this protective equipment in a company locker room where they don and doff this gear before and after work. The plaintiffs sued their employer to recover compensation for time spent putting on and removing protective gear, as well as time spent walking from the locker rooms to the production floor before and after a shift. The federal district court found for the plaintiffs and this decision was affirmed by the Ninth Circuit Court of Appeals.
The second case was appealed from the First Circuit, which covers Maine, New Hampshire, Massachusetts and Rhone Island. In Tum v. Barber Foods, Inc., the plaintiffs worked at Barber Foods, Inc. (“Barber”), a poultry processing plaint in Portland, Maine. The production workers at Barber have to wear protective clothing for a variety of work tasks. Current and past employees brought suit claiming that Barber violated the FLSA by not compensating employees for time spent putting on and removing protective gear. They also alleged that Barber violated the FLSA by not compensating them for walking and waiting time. The First Circuit Court of Appeals found for Barber.
After consolidating these cases, the Supreme Court considered two issues: (1) whether the time employees spend walking between changing and production areas is compensable under the FLSA, and (2) whether the time employees spend waiting to put on protective gear is compensable.
In analyzing these issues, the Court considered the Portal-to-Portal Act (“Act”). This Act was passed by Congress in 1947 to exempt time spent on two specific activities from being considered “hours worked” for purposes of the FLSA. The Act provides that walking to and from the location of an employee’s principal work activity is not covered by the FLSA. In addition, activities classified as “preliminary” or “postliminary” to the principal work activity are also excluded from FLSA coverage. The Court also considered one of its opinions from 1956 in which it found that employees should be compensated for activities that are integral and indispensable to the principal activity of the workplace.
Next, the Court recognized that under the Act time spent walking from a time clock located near a plant entrance to an employee’s work location is not compensated time under the FLSA. The Court indicated that there was a difference between walking that occurs after punching a time clock and walking that occurs after donning specialized protective gear. Essentially, the Court stated that walking from the time clock to a work location is walking time prior to the performance of a principal activity or prior to the start of the work day. In contrast, walking time after donning protective or unique work gear, which must be worn to perform a principal activity, is walking time after the work day has started, which makes it compensable.
The Court noted that its decision does not encompass the donning and doffing of ordinary work gear or non-unique gear, such as hard hats, boots, ear plugs, safety glasses, or hairnets. In Alvarez v. IBP, Inc., the Ninth Circuit recognized a distinction between the donning and doffing of unique gear versus the donning and doffing of non-unique gear. It found that donning and doffing of non-unique work gear was “de minimis as a matter of law” with regard to the case before it. Accordingly, the issue of donning and doffing non-unique gear was not considered by the Supreme Court on appeal.
In short, the Supreme Court affirmed the Ninth Circuit’s decision (the IBP case), and affirmed in part and reversed in part the First Circuit’s decision (the Barber case). The Court held that the time spent walking between changing and production areas is compensable, but time spent waiting generally is not. The Court also held that any activity that is “integral and indispensable” to a “principal work activity” is in itself a principal activity under §4(a) of the Act. Furthermore, walking time that occurs after an employee’s first principal activity and before an employee’s last principal activity constitutes compensable hours worked. As the Court clearly stated, “if applying and removing protective gear is [a] ‘principal activity’ related to working in a meat processing plant, then the walking that occurs after dressing and before undressing should be compensated.”
The Court rejected the argument that time spent waiting to put on clothes should be compensable time under the FLSA. It found that time spent waiting to dress may be classified as a preliminary activity, but is not in itself “integral and indispensable” or a principal activity. The Court indicated that while this waiting time is normally not compensated, there are situations in which waiting time must be compensated. Specifically, the Court noted that if an employee was required to report to a changing area at a specific time and had to wait on the protective gear to become available, this waiting time would be considered an integral part of the employee’s principal activities and thus, it is compensable.
The IBP Inc. decision establishes limited exceptions to the Portal-to-Portal Act and makes plain that the time spent donning and doffing specialized protective equipment or unique gear is compensable under the FLSA if it is essential that an employee wear this gear in order to perform his job duties. Furthermore, the time an employee spends walking to and from the changing area (where the protective/unique gear is donned and doffed) to the production area (where a principal work activity is performed) is also compensable under the FLSA. While this case may be deemed a victory for employees, it also provides helpful clarification as to whether these activities are compensable under the FLSA.
The author presents these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.