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Tomorrow’s Arguments: IBP v. Alvarez & Tum v. Barber Foods

Note: This post was authored by Rachel Kovner, a third-year law student at Stanford who (in connection with the Stanford Law School Supreme Court Litigation Clinic) worked extensively on No. 04-66, Tum v. Barber Foods.

Chief Justice Roberts will open his first Term on Monday with a pair of cases concerning the compensation of meat-processing workers. The cases ask whether the Fair Labor Standards Act mandates that workers be paid to wait in line and walk between equipment stations in order to retrieve and return the safety and sanitary equipment that they are required to wear.

The plaintiffs in IBP, Inc. v. Alvarez and Tum v. Barber Foods are hourly wage employees at a meat processing facility in Washington and a poultry processing plant in Maine, respectively. Workers at both plants were required to wear specialized sanitary and safety equipment such as goggles, gloves, liquid-repelling sleeves, and mesh metal garments when in the production areas. Neither company paid the workers for their pre-shift donning and doffing rituals: At IBP, workers were paid from the time the first piece of meat passed onto the production line until the day’s last piece of meat was processed. Barber employees were paid from the time they “clocked in” after putting on their equipment until the time they “clocked out” before removing their equipment.

Workers at both plants filed suit under the Fair Labor Standards Act (FLSA) seeking compensation for time spent putting on and taking off required sanitary and safety equipment, as well as time spent waiting in line and walking between equipment stations to retrieve and return their gear. The First and Ninth Circuits each held that time spent donning and doffing required safety gear qualifies as compensable “work” under the FLSA, though a jury held that the donning and doffing time in Tum need not be compensated because it was de minimis. (The Ninth Circuit reached the same result for some of the equipment in Alvarez.) The circuits reached differing conclusions concerning time spent waiting in line and walking between equipment stations. The Ninth Circuit ruled that the FLSA required compensation for such time in Alvarez, while the First Circuit reached the opposite conclusion in Tum. (Alvarez did not appeal the waiting time determination.) The Supreme Court granted certiorari to determine the compensability of the walking time in both cases and the waiting time in Tum.

Carter G. Phillips of Washington, D.C will argue on behalf of the processing companies, which are the petitioner in IBP and the respondent in Tum. Goldstein & Howe’s Thomas C. Goldstein will argue on behalf of the workers, who are petitioners in Tum and respondents in IBP. Assistant to the Solicitor General Irving Gornstein will argue for the United States in support of the workers. The briefs of the parties are available here.

Tum and Alvarez arise at the intersection of two federal statutes: the Fair Labor Standards Act, 29 U.S.C. 201 et seq., which requires that employees be compensated for all hours worked, and the Portal-to-Portal Act, 29 U.S.C. 251 et seq., which Congress passed in 1947 to limit the FLSA’s definition of “work.” While the FLSA itself does not define work, the Supreme Court has held that the term encompasses any physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the employer’s benefit. The Court interpreted this standard broadly in Anderson v. Mt. Clemens Pottery Co., holding that “work” included the time pottery plant employees spent walking to and from their work stations and preparing for production. Expressing concern that Mt. Clemens would generate a flood of litigation, Congress responded the very next session with the Portal-to-Portal Act. The Act exempts from compensation time spent “walking, riding, or traveling to and from the actual place of performance” of the worker’s principal activity or activities, and “activities which are preliminary or postliminary” to the principal activities. It applies only to time before workers begin their day’s principal activities or after they complete them.

IBP and Barber Foods argue that the walking time at issue before the Court on Monday fits squarely within the Portal Act’s exceptions to the FLSA. The companies argue that because workers walk between equipment stations at the start and end of their workdays, their walking is the sort of preliminary travel that the Portal Act excludes from the FLSA scheme. They argue that the plain meaning of “principal activity” does not include donning and doffing. As a result, they argue, donning and doffing does not begin the workday and require the compensation of subsequent walking and waiting. As IBP wrote in its brief: “Here, the ‘principal activity’ respondents are hired to perform is indisputably meat processing, not clothes-changing, and the ‘actual place of performance’ of this activity is the meat-processing work station, not the locker rooms or cafeteria where employees retrieve or don and doff their work gear.”

The workers argue that they must be compensated for the time at issue on the grounds that donning required safety equipment is a principal activity that begins the workday. They argue that the walking and waiting at issue must be compensated because the Portal Act exempts from FLSA compensation only time spent before or after the day’s principal activities. To establish that donning and doffing safety equipment is a principal activity, the plaintiffs rely in part on the 1956 Supreme Court case of Steiner v. Mitchell, which held that the FLSA required that battery plant workers be paid for time spent showering and changing into special clothes at work. The workers in Steiner had to shower and change clothes because they came into contact with hazardous chemicals on the job. As a result, the Court explained, the showering and clothes-changing activities “are an integral and indispensable part of the principal activity of employment.” The plaintiffs argue that Steiner — and Department of Labor regulations that echo it — establish that “principal activity or activities” includes all tasks that are integral and indispensable to any principal work activity. The plaintiffs also argue that because they must be compensated for donning and doffing required safety equipment, they must also be compensated for walking and waiting time because walking and waiting is an integral part of putting on and removing their gear.

The United States will also argue in support of the workers. It argues, in part, that the workers should prevail on the basis of deference to longstanding Department of Labor regulations. The regulations state that employees must be compensated for all time between their first and last principal activities except for bona fide breaks. They also state that the term “principal activity” should be construed liberally and includes all activities which are an integral part of another principal activity. The Department of Labor has enforced these regulations by suing meat processing companies — including IBP – for failure to compensate employees for walking time during the donning and doffing processes. The companies argue, however, that the Department of Labor regulations actually support their position in a footnote indicating that although activities which are an integral part of an employee’s principal activity must be compensated, “This does not necessarily mean … that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform” must be compensated.