IBP, Inc. v. Alvarez; Tum v. Barber Foods, Inc.

Employees' Argument

The Portal Act requires an employer to compensate an employee for his efforts during the workday, defined as the period between the first and last "principal activity." 29 U.S.C. § 254(a) ; see also Pet'r Tum's Br. at 4. Compensable efforts include not only productive labor, but also traveling between and waiting at work stations during the workday. 29 U.S.C. § 254(a) ; 29 CFR § 790.6 (2005) ; see also Pet'r Tum's Br. at 4. This policy reflects Congress's recognition that it would be "inadministerable" to start and stop the time clock each time an employee waited at or changed work stations. Pet'r. Tum's Br. at 11.

Significantly, the Portal Act removes employers' duty to pay employees when they engage in these kinds of activities outside the workday. 29 U.S.C. § 254(a). Indeed, this statute eliminates employers' obligation under federal law to compensate employees for the following categories of activities:

(1) 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

(2) activities which are preliminary to or postliminary to said principal activities—,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Id. (emphasis added). Thus, the Employees in this case stress that the Portal Act "does preclude compensation for petitioners' walk from the factory gate to the donning area, but it does not apply to walking during the workday." Pet'r Tum's Br. at 11. Because the Portal Act only removes an employer's obligation to compensate employees for tasks performed outside the workday—while preserving the employer's duty to pay employees for walking, waiting, and other activities occurring during the workday—the precise start and end of that workday is of utmost importance. Id . at 4.

As mentioned above, the Employees insist that the first and last principal activities performed mark the respective start and end of the workday. Pet'r Tum's Br. at 8. The Employees contend that waiting and walking to stations where safety equipment is distributed are, in and of themselves, principal activities that commence and conclude the workday. Id . As such, the walking to and waiting at the safety equipment distribution stations occur inside rather than outside the workday and hence are not covered by the Portal Act exceptions. Therefore, compensation is, according to the Employees, mandatory.

To support their theory of the case, the Employees offer three independent reasons to support their conclusion that waiting at and walking to distribution stations are either "principal activities" or so "integral and indispensable" to principal activities that they require compensation. First the Employees argue that Supreme Court precedent supports the proposition that waiting and walking are integral and indispensable to principal activities. Pet'r Tum's Br. at 10. In Steiner v. Mitchell , the Court held that the specific acts of putting on and taking off mandatory protective clothing were integral and indispensable to the employee's principal activities and hence compensable. 350 U.S. 247, 256 (1956). The Employees argue that walking and waiting are "part and parcel" of the donning and doffing process and, therefore, are similarly indispensable to their principal activities. Pet'r Tum's Br. at 12. The Employees insist that changing into and out of equipment, on the one hand, and walking and waiting at distribution stations, on the other hand, "cannot be sensibly distinguished" because employees "undertake the walking and waiting solely in order to complete the required donning and doffing." Id . at 12-13.

The Supreme Court's conclusion in Steiner that bathing, changing clothes, and dispensing of soiled laundry were integral to employees' principal activities aids the Employees' argument because the holding, they argue, suggests a broader construction of the donning and doffing process, which encompasses not only the specific act of putting on and removing clothes, but also closely related activities, including "walking and waiting as employees [are] given work clothes, chang[ing] into them in locker rooms, chang[ing] out of them at the end of the day, dropp[ing] them off for laundering by the employer, and proceed[ing] to take showers." Pet'r Tum's Br. at 12-13. The Employees, therefore, contend that the broader, more comprehensive understanding of donning and doffing elaborated in Steiner supports classifying waiting and walking as integral and indispensable to the employees' principal activities and should thus be compensable. Id .

Second, the Employees' state that walking and waiting at distribution stations are not only integral and indispensable to principal activities, but are themselves principal activities because they satisfy the FLSA's definition of work. See 29 U.S.C §§ 201 et seq. ; Pet'r Tum's Br. at 2-3. Under the FLSA, work includes efforts " controlled by [the] employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) (emphasis added). In the case at bar, the Employers exclusively control not only the kinds of gear required, but also the time, location, and schedule for retrieving and donning it. Pet'r Tum's Br. at 15. Furthermore, all such safety stations are located on the Employers' premises. Id . In this light, it may be argued that the walking and waiting process was entirely under the Employers' control.

Additionally, clothing requirements may chiefly benefit the Employers. Certainly, the gloves, aprons, and other gear safeguards employees; however, this protective gear is also indispensable to the successful operation of the Employers' businesses. At the Barber Foods ' plant, lab coats and hair nets prevent the spread of germs from human hands, hair, and arms to meats, thus ensuring quality control and compliance with Federal health and safety laws. Vinyl gloves, steel-toed boots, and steel mesh gloves, which protect employees against deep punctures and lacerations while handling cutting instruments, are also necessary to create a safe workplace where employees can work comfortably and securely. The resulting employee confidence in the workplace is a prerequisite to retain and attract workers. Further, by curbing serious workplace injuries, protective gear helps employers avoid costly legal suits and to reduce insurance rates. In light of these conspicuous benefits that the Employers derive from clothing requirements, "there is no serious dispute that the activities at issue in this case constitute compensable —work'" under the FLSA. Pet'r Tum's Br. at 23.

Third, the Employees insist that public policy imperatives command classifying waiting at and walking to the safety equipment stations as compensable activities. Denying compensation for such waiting and walking to locations of donning and doffing could significantly impact employee salaries. Factory employees earning marginal incomes may be chiefly affected by the Supreme Court's decision because many of these employees are especially sensitive to even small fluctuations in wages.

The Employees reject the Employers' contention that employees could unilaterally expand the length of the workday by donning and doffing equipment at anytime. Pet'r Tum's Br. at 12. To the contrary, the Employers exclusively control the time, location, and procedures by which employees receive and put on safety equipment. Id . Thus, an employee could not don his gloves and apron at six o'clock in the morning in order to lengthen the workday. Additionally, the Employers' implicit contention that compensating waiting and walking would balloon labor costs is without merit. Efficiency improvements, including reducing the distance between equipment distribution and work stations, adding distribution stations, and staggering groups and pick-up times, would curb these costs. Id .

Ultimately, the Employees contend that they should prevail. Pet'r Tum's Br. at 10-11. The Employees initially observe that, under Steiner , donning and doffing are integral and indispensable to the principal activities and thus serve to commence and conclude the workday. Id . Significantly, the Portal Act only removes an employers' obligation to compensate employees for tasks performed outside the workday, while preserving employers' duty to pay employees for walking, waiting, and other activities occurring during the workday. Id . Thus, at the very least, any walking or waiting that occur between the time an employee dons his equipment in the morning and doffs his equipment in the evening should be compensable.

Employers' Argument

The Employers contend that the plain language of the Portal Act expressly eliminates employers' obligation to compensate workers for time spent waiting and walking to stations where required equipment is distributed. Resp't Barber Foods' Br. at 6-7. The Portal Act exempts "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." 29 U.S.C. § 254(a). The Employers insist that "the principal activity or activities which such employee is employed to perform" is neither donning and doffing equipment nor waiting and walking to distribution stations, but rather poultry processing. Resp't Barber Foods' Br. at 7. Further, the Employers contend that the place of performance of the principal activity is the production floor and that any walking, riding, or traveling to and from the production floor should be non-compensable. Id .

The Employers reject the Employees' contention that Steiner classified donning and doffing as principal activities demarking the beginning and end of the workday. See Steiner , 350 U.S. at 256; Resp't Barber Foods' Br. at 7. Further, the Employers argue that even if the walking and waiting are integral and indispensable to employees' principal activities under Steiner , superseding language in Section 4(a)(1) of the Portal Act specifically bars compensation for "walking, riding, or traveling to and from the actual place of performance." See Steiner , 350 U.S. at 256; Pet'r Alvarez's Br. at 21.

The Employers further contend that exempting from compensation the walking to and from and waiting at safety equipment distribution stations fulfills the legislative intent of the Portal Act. See Amicus Br. , The Chamber of Commerce of the United States, National Association of Manufacturers, Society For Human Resources Management, and Association of International Automobile Manufacturers at 4-6. Congress sought to provide a default rule of non-compensability for all preliminary and postliminary travel time. Section 4(b), 29 U.S.C. § 254(b) of the Portal Act allows employers and employees to contract around the non-compensability of waiting and walking time under the appropriate circumstances, thus implying that non-compensability is the default rule. See Id . at 9-13.

Prior to the Portal Act's enactment, the Court held in Anderson v. Mt. Clemens Pottery Co. and similar cases that walking and waiting time was compensable. Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680, 691 (1946); Pet'r Alvarez's Br. at 21-22. The Employers argue that the Portal Act was a response to the ensuing tide of worker litigation—a tide that may rise again if preparatory activities are suddenly compensable. Pet'r Alvarez's Br. at 22-24.

Finally, the Employers insist that employees primarily control the sequence, schedule, and manner of obtaining required equipment at distribution stations, and therefore, waiting and walking do not qualify as compensable work under the FLSA. Asserting that a "great deal of flexibility and personal discretion [exists] among associates as to when and where they don and doff their clothing gear," the Employers argue that the "only specific requirement is that they be on the line and ready to go when the shift starts—" Resp't Barber Food's Br. at 7. The Employers explain that "[p]re-shift, some associates arrive early, pick up their clothes, and then go to the cafeteria to socialize; some don their clothes before going to the cafeteria, some after; some go to the lockers and don their clothes there, others do not use lockers; some don their clothes as soon as they retrieve them—" Id at 3-4 .