An Employer Must Compensate Employees For Time Spent Donning And Doffing
Protective Gear But Not For Pre-Donning Waiting Time
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On November 8, 2005, the United States Supreme Court issued a unanimous
decision in two consolidated cases, IBP v. Alvarez and Tum v.
Barber Foods, 543 U.S. ____, ___ S.Ct. ___, Nos. 03-1238 and 04-66,
holding that the time employees spend walking between required protective
gear changing areas and production areas and time spent waiting to remove
that gear at the end of the workday is compensable under the Fair Labor
Standards Act of 1938 (“FLSA”), as amended by the Portal-to-Portal Act of
1947, but that the time employees spend waiting to receive protective gear
before the work shift begins is not compensable.
|“In resolving a split among the
Circuit Courts of Appeal, the Supreme Court holds that (1) time
spent by employees walking between required protective gear changing
areas and production lines and (2) time spent waiting to remove
that gear at the end of the workday is compensable work time under
the FLSA; but (3) time spent waiting to receive protective gear
before the work shift begins is not compensable work time.”
The FLSA establishes minimum wage, overtime pay, recordkeeping, and child
labor standards affecting full-time and part-time workers in the private
sector and in federal, state, and local governments. The FLSA generally
requires employers to compensate employees for all time spent performing
“work.” However, one year after the Supreme Court decided in Anderson
v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), that the “statutory
workweek … include[d] all time during which an employee is necessarily required
to be on the employer’s premises, on duty, or at a prescribed workplace,”
Congress adopted the Portal-to-Portal Act.
The Portal-to-Portal Act, §§ 4(a)(1)-(2), amended the FLSA by exempting
from compensation the following:
- 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 or postliminary to said principal
activity or activities, which occur either prior to the time on any particular
workday at which such employee commences, or subsequent to the time on
an particular workday at which he ceases, such principal activity or activities.
Eight years after the adoption of the Portal-to-Portal Act, the Court
explained that the “term ‘principal activity or activities’ … embraces all
activities which are ‘an integral and indispensable part of the principal
activities,’” including the donning and doffing of specialized protective
gear “before or after the regular work shift, on or off the production line.”
Steiner v. Mitchell, 350 U.S. 247, 252-56 (1956) (holding “time incident
to changing clothes at the beginning of the shift and showering at the end,
where [employees] must make extensive use of dangerously caustic and toxic
materials, and are compelled by circumstances, including vital considerations
of health and hygiene, to change clothes and to shower” is compensable).
The Supreme Court granted certiorari in IBP v. Alvarez and
Tum v. Barber Foods in order to resolve a conflict in the federal Circuit
Courts of Appeals over the compensability of time spent by food processing
employees walking to and from required protective gear changing areas before
and after reporting to the production line. The Court also considered the
compensability of waiting time associated with the donning and doffing of
protective gear. In resolving the Circuit Court conflict, the Court held
that time spent by employees walking between required protective gear changing
areas and the production line was compensable work time under the FLSA,
that time spent waiting to remove that gear at the end of the workday also
was compensable, but that time spent waiting to receive gear before the
work shift began was not.
Facts in IBP, Inc. v. Alvarez
IBP, Inc. (“IBP”) is a large producer of fresh beef, pork, and related
products. All production workers at the plant must wear outer garments,
hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots.
Many of them, particularly those who use knives, must also wear protective
equipment for their hands, arms, torsos, and legs; this gear may include
chain link metal aprons, vests, Plexiglas armguards, and special gloves.
IBP requires its employees to store their tools and equipment in company
locker rooms, where most of them don their protective gear.
IBP paid its production workers for time spent cutting and bagging meat.
Compensable time began with the first piece of meat and ended with the last
piece of meat. Since 1998, IBP also paid for four minutes of changing time
but did not compensate employees for the time spent walking to and from
their work area before and after end-of-the-day clothes changing. In 1999,
IBP employees filed a class action to recover compensation for pre-production
and post-production work, including time spent donning and doffing protective
gear and time spent walking to and from locker rooms and the production
floor before and after their assigned shifts.
The District Court for the Eastern District of Washington held that time
spent donning and doffing protective gear that was unique, integral, and
indispensable to the employees’ work was compensable work time, as was the
time spent walking to and from the production area. The court did not require
compensation for donning and doffing of ordinary gear (e.g., hardhats, ear
plugs, safety glasses).
On appeal, the Ninth Circuit Court of Appeals agreed with the district
court’s conclusion that the time spent donning and doffing unique protective
gear was compensable, but applied a different reasoning. The Ninth Circuit
held that the donning and doffing of elaborate protective gear is compensable
because it is burdensome, but that “the time employees spent donning and
doffing non-unique protective gear was de minimis as a matter of
law” and therefore non-compensable. Alvarez, 339 F.3d 894, 904 (9th
Facts in Tum v. Barber Foods, Inc.
Barber Foods, Inc. (“Barber”) operates a poultry plant in Portland, Maine,
which employs 300 production workers. Barber’s employees operate six production
lines and perform tasks that require different combinations of protective
clothing. They were paid by the hour starting at the time they “punched
in” to computerized time clocks located at the entrance to the production
floor. Barber’s employees filed suit in the District Court of Maine to recover
compensation for time spent donning and doffing the required protective
gear and the attendant walking and waiting time.
The district court granted partial summary judgment in favor of Barber,
holding that the donning and doffing of protective gear required by the
employer or by government regulation is an integral part of the employees’
work and therefore not excluded from compensation under the Portal-to-Portal
Act as preliminary or postliminary activities. However, the district court
rejected the employees’ claims for compensation for the time spent before
obtaining their clothing and equipment, holding that the walking and waiting
time “could [not] reasonably be construed to be an integral part of employees’
work activities.” Therefore, the employer prevailed “on any claims for compensation
for time spent walking from the plant entrances to an employee’s workstation,
locker, time clock, or site where clothing and equipment required to be
worn on the job is to be obtained and any claims based on time spent waiting
to punch in or out for such clothing or equipment.”
Barber’s employees appealed to the First Circuit, arguing that the district
court had improperly excluded as non-compensable the time employees spent
walking to the production floor after donning required safety gear and the
time they spent walking from the production floor to the area where they
doff such gear. The First Circuit rejected the employees’ argument, concluding
that walking time was a species of “preliminary and postliminary” activities
excluded from FLSA coverage. The Court also concluded that the waiting time
associated with the donning and doffing of clothes qualified as a “preliminary
or postliminary activity” and thus was excluded from FLSA coverage by the
Supreme Court’s Decision
After consolidating the two cases, the Supreme Court affirmed the Ninth
Circuit’s decision in IBP, and affirmed in part and reversed in part the
First Circuit’s decision in Tum. The Court explained that “during
a continuous workday, any walking time that occurs after the beginning of
the employee’s first principal activity and before the end of the employee’s
last principal activity is … covered by the FLSA.” Therefore, walking time
associated with the donning and doffing of unique protective gear is not
excluded under § 4(a)(1) of the Portal-to-Portal Act. “[A]ny activity that
is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal
activity’ under § 4(a) of the Portal-to-Portal Act. Moreover, during a continuous
workday, any walking time that occurs after the beginning of the employee’s
first principal activity and before the end of the employee’s last principal
activity is … covered by the FLSA.” Therefore, pre-doffing waiting time
is compensable when the employee is doffing gear that is “integral and indispensable”
to employees’ work because it too is part of the continuous workday.
However, the Court held that time spent waiting to don the first piece
of protective gear, that is, time that elapses before the ‘principal activity’
of donning integral and indispensable gear, is not compensable, reasoning
that waiting time is not “integral and indispensable” and therefore excluded
from FLSA coverage by § 4(a)(2). The Court cautioned that a different result
might be necessary if the employer “required its employees to arrive at
a particular time in order to begin waiting.”
Notably, the Court did not base its decision on whether the time spent
engaged in donning and doffing or walking are de minimis or not;
the focus is not on the amount of time spent on an activity but rather whether
the activity is “integral and indispensable” to the employees’ work.
Significance of Decision
The import of this decision is not limited to the meat and poultry industries
referenced in these cases. Employers in the medical, dental, engineering,
scientific research, waste disposal, food services, bottling and packaging,
and certain retail industries may also be affected by this decision. Any
employer that requires its employees to don unique, protective gear because
of internal policies or state or federal regulations must compensate those
employees for the time spent donning the equipment and doffing the equipment
at the end of the day. Likewise, any employer who requires its employees
to “clock in” and then walk to their respective stations should compensate
those employees for the walking time as well.
Even though the actual walking and donning/ doffing time individually
may be no more than a few minutes per employee, the potential economic impact
can be substantial when these minutes are multiplied by numerous employees
over months and even years. Employers should be aware that even seemingly
small violations of the FLSA can result in significant damages in the aggregate.
Employers should consider taking several steps to improve their wage
and hour policies in light of this decision, including: providing better
and more frequent manager training on wage and hour law requirements generally;
disciplining managers who consistently fail properly to compensate employees
for compensable time on the job; considering wage and hour compliance as
a factor in managers’ annual performance/bonus reviews; appointing a wage
and hour compliance officer whose job responsibility includes vigilant supervision
of the company’s wage and hour policies and practices and knowledge of the
FLSA and any applicable state laws and company policies; disseminating to
all employees a comprehensive written wage and hour policy (including donning/doffing)
and employee complaint procedure; immediately and thoroughly investigating
any employee complaints about miscalculation of compensable hours and reimbursing
employees for any inadvertent miscalculations. Employers who wish to review
or adopt compliant wage and hour policies and practices are encouraged to
contact their Greenberg Traurig Labor and Employment attorney.
This Alert was written by
Laura Lawless in the Phoenix
office and Lauren Tanen
in the New York office. Please contact Ms. Lawless at 602.445.8000 or Ms.
Tanen at 212.801.9200 or your Greenberg Traurig liaison if you have any
questions regarding the subject matter of this Alert.
© 2005 Greenberg Traurig
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This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
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