United States Supreme Court Rules Against Employers
in Pay Dispute

The United States Supreme Court ruled on Tuesday that employers must pay workers for the time it takes to change into protective clothing and safety gear and walk to their work stations.Under the Fair Labor Standards Act, 29 U.S.C. Sections 201 et seq. ("FLSA"), as amended by the Portal-to-Portal Act, 29 U.S.C. Sections 251-262 ("Portal Act"), employees must be compensated for the time their employer requires them to spend donning and doffing protective gear.  At issue in the cases ruled upon yesterday by the Court, IBP, Inc. v. Alvarez, 339 F.3d 894 (9th Cir. 2003) and Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004), was the question whether an employee is also entitled to compensation under the FLSA for time spent waiting at stations where required safety and health equipment is distributed, donned, and doffed, and traveling to and from these stations to work sites.  The decision of the Court was the result of two separate appeals dealing directly with these issues - one from the Court of Appeals for the First Circuit and the other from the Court of Appeals for the Ninth Circuit.

In Barber Foods, Inc., a plant employee sued to recover unpaid wages for time spent waiting at and walking to stations where safety equipment including vinyl gloves, back belts, steel mesh gloves, and hard hats were distributed.  Barber Foods, a poultry processing plant in Portland, Maine that employs about 300 production workers, maintained the distribution of the this protective equipment and refused to pay its employees for the time they spent waiting for the dispensing of such equipment.  On an average day, employees could spend up to thirty minutes traveling from station to station in order to receive their equipment.  The lower courts issued summary judgment in favor of Barber Foods, holding that the company was not required to compensate the 300 employees at the plant for the time spent waiting for equipment and walking to stations where the required health and safety gear was handed out.  The lower courts determined that these tasks were, as a matter of law, "preliminary and postliminary" activities exempted from required compensation under the Portal Act, which excludes "activities which are preliminary to or postliminart to [a] principal activity or activities."

In IBP, Inc., the facts were virtually identical in this case arising out of a meat-packing plant in Pasco, Washington.  However, the Ninth Circuit reached the opposite conclusion, ruling that the employer was required to compensate more than 800 employees for time spent waiting and walking to stations where protective equipment is distributed. On Tuesday, the Supreme Court, in an unanimous opinion delivered by Justice John Paul Stevens, agreed with the Ninth Circuit and held that the time employees spend walking between changing and production areas is compensable under the FLSA.  The Court went on to hold that because donning and doffing gear that is "integral and indispensable" to employees' work is a "principal activity" under the statute, the continuous workday rule mandates that the time employees spend walking to and from the production floor after donning and before doffing, as well as the time spent waiting to doff, are not affected by the Portal Act language, and are instead covered by the FLSA.

The ruling by the Court, however, was not a complete defeat for employers.  Justice Stevens wrote that Section 4(a)(2) excludes from the FLSA's scope the time employees spend waiting in line for equipment and safety gear, when they first arrive at work.  Such activity qualifies as a "preliminary" activity under the Portal Act, and therefore, are exempted from required compensation.