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Yesterday’s Oral Arguments in IBP v. Alvarez and Tum v. Barber Foods

Note: This post was authored by Rachel Kovner, a third-year law student at Stanford who worked on the Tum case and attended oral arguments yesterday.

The Supreme Court seemed to regard precedent as requiring the compensation of meat-processing workers for time spent walking and waiting at its oral argument yesterday in Tum v. Barber Foods and IBP, Inc. v. Alvarez. The cases, discussed in greater detail in this prior post, ask whether the plaintiffs must be paid for time spent waiting in line and walking between equipment stations in order to retrieve and return required sanitary and safety gear.

The cases turn on interpretation of the Portal Act, which created several exceptions to the federal statute that requires employers to compensate their workers for all hours worked. The Portal Act exempts time spent “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform,” and “activities which are preliminary to or postliminary to said principal activity or activities,” when the travel or activities occur outside the regular workday. In Steiner v. Mitchell, the Supreme Court held that notwithstanding the Portal Act, employees at a battery plant must be paid for time spent changing clothes at the beginning of their shifts and showering at the end, because doing so was “integral and indispensable” to the workers’ principal activities.

At oral argument on Monday, Carter G. Phillips argued on behalf of the companies that the Portal Act was meant to exempt walking and waiting like that at issue in Tum and Alvarez. Mr. Phillips conceded that time meat-processing workers spend putting on and taking off equipment qualifies as “integral and indispensable” and must be compensated. But he argued that the workers’ principal activity is meat processing, not donning safety gear. As a result, he told the Court, putting on safety equipment does not trigger the start of the workday and require compensation for subsequent walking or waiting.

From the very first question of the Term, the Supreme Court seemed skeptical of this argument. Six members of the Court – Chief Justice Roberts and Justices Ginsburg, O’Connor, Scalia, Souter, and Kennedy — suggested that they thought Steiner established that all activities which are integral and indispensable to another principal activity are themselves principal. As a result, the employees in these cases would have to be compensated for all subsequent time, including walking and waiting, until they finish work for the day (with the exception of substantial breaks). Justice Scalia said he would have thought the companies were correct that donning and doffing safety equipment is not a principal activity, but that Steiner held otherwise. Justice O’Connor noted that the Steiner Court said it agreed with the court below, which held that showering and clothes-changing were “principal activities.” She later asked Mr. Phillips whether he was asking the Court to overrule Steiner. (Mr. Phillips said he simply wanted the case limited to its unusual facts.) “The problem with your argument is Steiner,” Justice Kennedy said at one point during the argument.

In his first question from the bench, Chief Justice Roberts pressed Mr. Phillips on the companies’ interpretation of Steiner. He indicated that the Portal Act establishes two categories of work activities, in addition to travel time. First, the Act recognizes principal activities, which begin the workday and require compensation for all subsequent working time until an employee finishes his last principal activity. Second, the Act recognizes preliminary or postliminary activities, which do not trigger the start of the workday and need not be compensated. Justice Roberts said that the companies’ interpretation of Steiner would create a third category: “integral and indispensable” activities, which must be compensated but are not principal and do not trigger the start of the workday. “But that’s nowhere in the statute,” Justice Roberts said.

Justice Scalia made clear that while he might regard Steiner as controlling, he was not particularly fond of the precedent. Thomas C. Goldstein of Goldstein & Howe, arguing for the workers, said that employers would lack incentives to organize their pre-shift routines efficiently unless they were required to pay workers for the time involved. Justice Scalia responded that it might be most efficient to allow workers and employers to negotiate over what work should be compensated. “Don’t talk to us about efficiency,” he said. “It seems to me that the efficiency arguments are on the other side.”

Justice Breyer suggested that he might defer to the Department of Labor’s determination that the walking and waiting is compensable with respect to most of the time at issue, but that the employees might have a weaker case regarding waiting before they put on their first piece of equipment. Justice Ginsburg asked if the First Circuit really addressed this waiting time in Tum, because the circuit court flatly ruled that no waiting time was compensable. (Alvarez did not present the question of waiting time in its posture before the Court.) She said that perhaps the Court should not address the question of how to handle that pre-donning waiting time until it was considered in greater depth below.

Justice Ginsburg also said that perhaps the Court should not decide Alvarez at all. Because the Ninth Circuit ruled that IBP violated both federal and Washington state law, the monetary judgment in that case will stand regardless of how the Court interprets the federal law. As a result, Justice Ginsburg suggested, perhaps the Supreme Court should decide only Tum. Mr. Phillips, representing the employers, and Mr. Goldstein, representing the employees, said that the Court should still decide Alvarez because the federal judgment against IBP has collateral consequences. For example, it would prevent the company from arguing in subsequent cases that the walking and waiting policies at issue did not violate federal law.