IBP v. Alvarez
The U. S. Supreme Court recently resolved a conflict between federal courts of appeals regarding the provisions of the Fair Labor Standards Act (FLSA) that require compensation to employees for the time spent donning (applying) and doffing (removing) specialized protective gear. In IBP Inc. v. Alvarez, 163 L. Ed. 2d 288, 302 (2005), the Court held that employees are to be compensated for the time spent walking between their changing areas and their work areas after donning and before doffing their specialized protective gear. The Court also held that employees must be compensated for time spent waiting to doff their specialized equipment, but not for time spent waiting to don the equipment.1
While the holding creates a clearer picture of what is included within the compensable workday, the Court’s opinion still leaves unanswered questions concerning the scope of its decision. In addition, there appear to be inconsistencies in the opinion’s language that may require further clarification.
History of Portal-to-Portal Act Amendments
The controversy addressed by the Court in IBP concerned the interpretation of §4 of the Portal-to-Portal Act, the statutory response to what Congress considered an expansive judicial interpretation of compensable “work” under the FLSA.2 While the FLSA does not explicitly define “work,” early Supreme Court cases interpreted the term to encompass activities related, but not necessarily vital to the specific task for which an employee was hired. For example, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court held that the time employees spent walking from time clocks located at an employer’s entrance gate to the factory floor was compensable working time.3
Congress believed that such a broad interpretation of compensable time imposed “wholly unexpected liabilities, immense in amount”4 upon employers and, in response, enacted the Portal-to-Portal Act of 1947 to more specifically define compensable work under the FLSA. Accordingly, §4(a)(1) of the act exempts from compensable time “walking, riding, and traveling to and from the actual place of performance of an employee’s principal activity or activities,” and §4(a)(2) exempts “activities which are preliminary to or postliminary to said principal activity or activities.”5 What the Portal-to-Portal Act clearly does not do is address compensation for activities occurring between the workday’s first and last principal activities. Instead, that period is governed by the “continuous workday rule,” i.e., the “workday” is defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.”6
Steiner v. Mitchell
Predictably, the Portal-to-Portal Act’s emphasis on “principal activity or activities” raised a question as to the term’s precise meaning, which was addressed in the 1956 Supreme Court case Steiner v. Mitchell, 350 U.S. 247 (1956).In Steiner, the productionemployees of a battery plant were required to don protective work clothes before their productive work, and to shower and change back into their personal clothes at the end of the productive work, in order to avoid exposure to toxic chemicals.7 The employees were not compensated for this time.8 The employees argued that the precautionary measures were essential components of their principal activities and, therefore, subject to compensation.9 The employers countered that such measures were preliminary and/or postliminary to the employees’ principal activity, specifically excluded from compensable work time under §4(a)(2) of the Portal-to-Portal Act.10
In affirming the lower court’s decision, the Steiner Court held that the employees should be compensated for the time spent showering and donning and doffing their protective work clothes because they were “integral and indispensable” to the principal activity of battery production.11 Citing the legislative history behind the Portal-to-Portal Act, the Court explained that the definition of the term “principal activity or activities” includes those activities which are “integral and indispensable” to the principal activities rendering such activities as “principal” themselves.12 Because the principal activity of battery production could not be accomplished without protecting employees from toxic chemicals, the protective measures were integral and indispensable to, and therefore a part of, that principal activity.
The IBP Decision
The 2005 IBP v. Alvarez decision addressed the nexus of Steiner’s donning and doffing “principal activity” classification with the continuous workday rule. The Court addressed two cases consolidated on appeal — IBP v. Alvarez and Tum v. Barber Foods, Inc., 360 F. 3d 274 (1st Cir. 2004), — involving employers whose businesses required their employees to wear protective gear. In IBP v. Alvarez, a producer of meat products required its production employees to wear “nonunique” protective gear, like goggles and hardhats, as well as “unique” protective gear, including chain link metal aprons and plexiglass armguards.13 The employees were only compensated for a small portion of their donning and doffing time, and brought a class action to recover compensation for the time spent donning and doffing the protective equipment and also for the time spent walking between their locker rooms and the production floor before and after their assigned shifts.14
According to the Ninth Circuit Court of Appeals, the donning and doffing of the protective gear was “integral and indispensable to the job” and, thus, part of the employees’ principal activities.15 Applying the “Steiner bipartite integral and indispensable test,” the Ninth Circuit explained that the gear was integral and indispensable to the employees’ principal activities because it was “necessary to the performance of the principal work” (because the gear was required by law, by rule of IBP, and by the nature of the work) and “done for the benefit of the employer” (because it fulfilled legal requirements and prevented workplace injuries and contamination).16 However, because the time spent donning and doffing the nonunique gear was negligible, the court applied the well-established de minimisdoctrine 17 and held that the employer was not required to compensate the employees for that time.18 The court held that only the time spent donning and doffing the unique gear was compensable.19
The Ninth Circuit further held that the walking time between the locker room and the production floor was compensable.20 The court explained that because walking time occurred after the donning of protective gear, the first principal activity of the day, “all activities performed thereafter — such as walking — occur during the ‘principal’ workday and are compensable.”21
In the other consolidated case, Tum v. Barber Foods, Inc., the First Circuit Court of Appeals similarly held that the donning and doffing of required protective gear by employees in a poultry production facility was integral and indispensable to the employees’ principal activities, and, therefore, compensable.22 However, unlike the Ninth Circuit in IBP, the First Circuit held that the time spent walking between the changing area and the production floor was not compensable because it was a preliminary and postliminary activity excluded from FLSA coverage under the Portal-to-Portal Act.23 The court also held that the time spent waiting to both don and doff the protective gear was not compensable.24
The Supreme Court consolidated IBP and Tum specifically to address the following issues: 1) “Whether the time employees spend walking between the changing area and the production area is compensable under the FLSA”; and 2) “whether the time employees spend waiting to put on the protective gear is compensable under the statute?”25
Oral argument at the Supreme Court — the first presided over by new Chief Justice John G. Roberts — centered on the appropriate application of the Steiner decision.26 Counsel for the employers, Carter G. Phillips, argued that Steiner’s inclusion of “integral and indispensable” activities within the definition of “principal activity or activities” was specifically limited to 4(a)(2)’s rule regarding preliminary and postliminary activities and was not applicable to §4(a)(1)’s rule regarding employees’ walking and travel time. He argued that Steiner created a third category of activities — “integral and indispensable” activities — which were entitled to compensation as activities beyond 4(a)(2) preliminary or postliminary status but that did not constitute “primary activities” under 4(a)(1) and the continuous workday rule such that they triggered the beginning of the compensable workday. Phillips also pressed upon footnote 49 within a Department of Labor regulation promulgated shortly after the Portal-to-Portal Act’s enactment which suggested that simply because the changing of clothes may constitute an employee’s principal activity, this “does not necessarily mean. . . that travel time between the. . . clothes-changing place and the actual place of performance. . . would be excluded from the type of travel to which section 4(a) refers (emphasis added).”27
In response to the footnote 49 argument, Thomas C. Goldstein, the employees’ counsel, interpreted the footnote’s “not necessarily” language as noncommittal to the question of whether walking time between the locker room and production floor is compensable. Likewise, Irving L. Gornstein, on behalf of the U.S. as amicus curiae, suggested that the Department of Labor actually should have removed the footnote from its regulations because it clearly contradicts the department’s position.
In a unanimous decision, the Supreme Court held that employees must be compensated for the time spent walking between their changing area and the production floor after donning and before doffing specialized protective gear.28 The Court further held that the waiting time to doff the gear is compensable, while the waiting time to don it is not.29
The Court explained that activities “integral and indispensable” to “primary activities” are themselves “primary activities,” and disagreed with the employers’ contention that they are an intermediate category of activities sufficiently “principal” to be compensable under 4(a)(2), but not sufficiently principal to commence the workday under 4(a)(1).30 While acknowledging that Steiner specifically addressed the interpretation of “principal activities” in 4(a)(2), the Court relied on the rule of statutory interpretation that “identical words used in different parts of the same statute are generally presumed to have the same meaning” for its conclusion that “there is no plausible argument that these terms mean something different in Sec. 4(a)(2) than they do in Sec. 4(a)(1).”31 The Court also noted that the phrase “said principal activity or activities” in §4(a)(2) specifically refers to the same term used in §4(a)(1).32
The Court also rejected the argument that compensating employees for the walking time was contrary to the Portal-to-Portal Act’s purpose.33 It distinguished IBP from Anderson’s facts where “the walking preceded the employee’s principal activity” and, therefore, “occurred before the workday began.”34 In IBP, because the donning of protective clothing was a principal activity, the “relevant walking. . . occur[ed] after the workday beg[an] and before it end[ed].”35 Furthermore, the Court found that footnote 49’s “ambiguous” and “ambivalent” language is noncommittal to the walking time issue and certainly does not mandate that the time always be excluded from compensation, in light of the “the clear statements in the text of the regulation. . . ”36
Finally, the Court held that the continuous workday rule mandates that the time spent waiting to doff protective gear is compensable because it occurs between the first and last principal activities of the day.37 Conversely, the Court concluded that the time waiting to don the gear “comfortably qualifies”38 as a preliminary activity excluded from compensation under 4(a)(2) because, it was “not persuaded that such waiting — which in this case is two steps removed from the productive activity. . . — is ‘integral and indispensable’ to a ‘principal activity’ that identifies the time when the continuous workday begins.”39
Import and Limitations of IBP
Nonunique Protective Gear — “Integral and Indispensable”?
The IBP decision leaves some unanswered questions. First, it is not entirely clear whether the Court considers the donning and doffing of nonunique protective gear as integral and indispensable to employees’ principal activities. The Court did affirm the Ninth Circuit’s judgment, which found nonunique gear to meet the Steiner “bipartite integral and indispensable” test. However, there is language in IBP to suggest that the Court may not have agreed with the portion of the Ninth Circuit’s opinion addressing nonunique gear. For example, the Court concluded that “the locker rooms where the special safety gear is donned and doffed are the relevant ‘place of performance’ of the principal activity that the employee was employed to perform within the meaning of Section 4(a)(1).”40 The phrase “special safety gear” indicates that the Court may have adopted the district court’s position that only the donning and doffing of unique gear, like chain-metal aprons, can be considered an employee’s principal activity. Indeed, the Supreme Court merely cited the Ninth Circuit’s rejection of the district court’s position and subsequent incorporation of the de minimisdoctrine without explicitly passing judgment on this discrete issue.
Furthermore, when describing the issues before it, the IBP Court first articulated the portion of the Ninth Circuit’s holding that the employers were not challenging: that “the donning and doffing of unique protective gear are ‘principal activities’ under Section 4 of the Portal-to-Portal Act.”41 Then, in the same paragraph, the Court explained it was only deciding whether the walking time between the locker room and production floor was compensable.42 It is reasonable to assume that the locker rooms to which the Court was referring were locker rooms containing the “unique” protective gear as referenced in the same paragraph. Thus, it is not clear from the IBP opinion whether the holding would have been the same if only the donning and doffing of nonunique protective gear was at issue.
Effect of the De Minimis Doctrine
Assuming the Supreme Court did adopt the Ninth Circuit’s entire holding, that lower court’s use of the de minimisdoctrine to preclude compensation for the negligible time spent donning and doffing nonunique protective gear appears to be inconsistent with other language in Court’s decision. As explained above, the Court rejected the employers’ argument that Steiner essentially created an intermediate category of activities — “integral and indispensable” activities — sufficiently “principal” to be compensable but not sufficiently principal to commence the workday. However, the application of the de minimisdoctrine as advocated by the Ninth Circuit to certain nonunique protective gear creates a reverse, yet equally intermediate category of activities: activities that are sufficiently “principal” to commence the workday, but not sufficiently principal to be compensable. The Court did not address this issue.
Limits of the Continuous Workday Rule
Questions also exist as to the practical breadth of the compensable workday. It is unclear at what point the continuous workday rule yields to the reality that an actual break in work has occurred. For example, to what extent is a sales person compensated for the drive time to her office after she makes a phone call in the morning from her home to a customer before leaving for the office? Clearly, the phone call qualifies as a principal activity of sales and, thus, triggers the commencement of the compensable workday. Is she then entitled to compensation for her driving time? What if she drives to the parking garage she uses while at work, makes the phone call from the garage, and then walks 10 minutes to the office?
During oral arguments, Chief Justice Roberts asked the related question of, “How do we tell if the space in time between two different principal activities. . . is a break or part of the continuous workday?” Irving L. Gornstein responded that compensation would not be warranted for time periods “so substantial that the employees can effectively use that time for their own purposes.” Earlier, Goldstein cited the “canine” cases — cases where courts have held that police officers are compensated for the time spent grooming their canines at home but not for their subsequent drive to the police station — as dissimilar to IBP.Goldstein distinguished the driving time in the canine cases from the walking time in IBP by pointing out that the driving time is a “break and a commute. . . covered by the Fair Labor Standards Act.”
These and other questions have been left for another day. Until then, prudent employers will carefully consider IBP and its implications when calculating compensable working time.
1 IBP, 163 L. Ed. 2d at 305.
2 29 U.S.C. §254 (2005).
3 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). See also Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944); Armour & Co. v. Wantock, 323 U.S. 126 (1944).
4 61 Stat. 84.
5 29 U.S.C. §254
6 29 CFR §790.6(b) (2005).
7 Id. at 251.
9 Id. at 248-49.
10 Id. at 251-52.
11 Id. at 256.
12 Id. at 252-53 (citing the following legislative history: “In accordance with our intention as to the definition of ‘principal activity,’ if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity.”).
13 IBP, 168 L. Ed. 2d at 298.
15 Alvarez v. IBP, Inc., 2001 U.S. Dist. LEXIS 25344 (D. Wash. 2001).
16 Alvarez, 339 F.3d at 903.
17 See, e.g,, Anderson, 328 U.S. at 692 (“When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”); Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984).
18 Alvarez, 339 F.3dat 904.
20 Id.at 907.
21 Id. at 906.
22 Tums, 360 F.3d at 279.
23 Id. at 282.
25 IBP, 168 L. Ed. 2d at 294.
26 A complete transcript of the oral argument can be accessed at www.supremecourtus.gov/oral_arguments/argument_transcripts.html
27 29 CFR §790.7, n. 49.
28 IBP, 168 L. Ed. 2d. at 302.
29 Id. at 305.
30 Id. at 300.
33 Id. at 301.
36 Id. at 302.
37 Id. at 304.
39 Id. at 305.
40 Id. at 300.
41 Id. at 299.
Shane T. Muñoz, a partner with Zinober & McCrea, P.A., has been practicing law since 1989. Mr. Muñoz received his B.S. degree (with honors) from the University of New Hampshire in 1977 and his J.D. degree (with high honors) from the University of Connecticut School of Law in 1989. He represents employers in proceedings before the Equal Employment Opportunity Commission, the Florida Commission on Human Rights, the Office of Federal Contract Compliance Programs, and other federal, state, and local agencies. Mr. Muñoz is board certified in labor and employment.
Neville F. Dastoor, an associate with Zinober & McCrea, P.A., received his B.A. degree in political science, with honors, from the University of Florida and his J.D. in 2004 from the Vanderbilt University Law School where he was the recipient of the 2002 Vanderbilt Scholastic Excellence Award for Legal Writing II. Mr. Dastoor was an associate editor of the Vanderbilt Journal of Entertainment Law and Practice and was a finalist in the 2003 Vanderbilt Moot Court competition.
This column is submitted on behalf of the Labor and Employment Law Section, Frank D. Kitchen, chair, and Frank E. Brown, editor.