Supreme Court defines the workday expansively

By Allen Smith Nov 8, 2005

Once it starts, the workday is continuous and compensable, the U.S. Supreme Court clarified Nov. 8.

In a unanimous decision written by the most senior judge, Justice John Paul Stevens, the court ruled that the workday includes the time employees spend walking from changing areas where they don protective clothing to the production area and the time walking back. Compensable time also includes the time employees have to wait before doffing, or removing, the gear, but not the waiting time before donning it, or putting it on, the court held.

The compensable workday is not on and then off after the donning of protective gear other than for lunch breaks or other times that are agreed to by management and labor as being off the clock, said Robert Costagliola, labor and employment counsel for the U.S. Chamber of Commerce, in an interview with HR News. He was disappointed but not surprised by the ruling, remarking that the decision solidifies the concept that once the workday starts there generally is not time that is not involved in a compensable principal activity.

“We’re obviously disappointed,” agreed Quentin Riegel, vice president of litigation for the National Association of Manufacturers (NAM). NAM, the Society for Human Resource Management and the Chamber of Commerce, among others, filed a friend-of-the-court brief on behalf of the employers.

Riegel predicted that the ruling will burden many industries in the United States and add costs that may lead to offshoring of jobs or may make it difficult for U.S. companies to compete with foreign corporations.

“On a per-worker basis, this additional compensation won’t amount to a huge sum,” he added. “But when you add it all up, week after week, various employers will face a significant new cost burden that will invariably affect their competitiveness—particularly with respect to foreign competition.”

However, U.S. Secretary of Labor Elaine L. Chao praised the decision, calling it “a tremendous victory for low wage-workers across the country and the Department of Labor. … These private cases, in which the government filed amicus briefs, are the culmination of this administration’s initiative to compel poultry processors to pay their workers for all hours worked. We will now move ahead to assure that all affected companies pay their employees correctly.”

The decision involved production employees at an IBP plant in Pasco, Wash., whose pay has been based on the time spent cutting and bagging meat. Since 1998, IBP also has paid for four minutes of clothes-changing time.

The plant employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in processing, the court stated. All production workers in both divisions must wear outer garments, hard hats, hairnets, earplugs, gloves, sleeves, aprons, leggings and boots.

Many, particularly those who use knives, must wear protective equipment for their hands, arms, torsos and legs as well. This gear includes chain link metal aprons, vests, Plexiglas armguards and special gloves. The workers must store their equipment and tools in company locker rooms, where most don their protective gear.

IBP employees filed a class action under the Fair Labor Standards Act (FLSA) to recover compensation for preproduction and postproduction work, including the time spent donning and doffing the gear and walking between the locker rooms and the production floor before and after their shifts.

A district court concluded that the donning and doffing of unique protective gear, but not ordinary clothes or such common gear as hardhats and safety goggles, was compensable, as well as the walking time to the production floor. The 9th U.S. Circuit Court of Appeals affirmed.

On appeal to the Supreme Court, IBP did not challenge the holding that the donning and doffing of unique protective gear are compensable principal activities of the job. But it challenged the determination that the walking time was compensable, arguing that it was excluded from the FLSA by the Portal-to-Portal Act.

The Supreme Court decision also involved a claim by workers at a Barber Foods poultry processing plant in Portland, Maine. They challenged determinations by the 1st U.S. Circuit Court of Appeals that walking time from the changing room to and from the production floor was excluded from FLSA coverage and that the time waiting to don or doff protective gear was not compensable.

Compensable walking time

Relying heavily on U.S. Department of Labor regulations, the Supreme Court determined that the locker rooms where the special safety gear is donned and doffed are places of performance of principal job activities. Walking to those places before starting work is excluded from FLSA coverage, but walking from the locker rooms to other areas within the plant after the workday has commenced is not excluded.

The court rejected the argument that donning is not the principal activity that starts the workday and that walking immediately after donning and before doffing therefore is not compensable. “IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently ‘principal’ to be compensable, but not sufficiently principal to commence the workday,” the court stated.

It noted that the walking time in dispute for IBP’s employees is shorter than the time taken by the donning and doffing. The walking “is more comparable to time spent walking between two different positions on an assembly line” than to walking to the job before the workday has started, the court stated.

Time spent waiting to doff unique protective gear also is compensable because it is integral and indispensable to principal work activities, the court also ruled. But waiting to don the gear was not integral to the work for Barber employees.

However, waiting to don clothes would have been compensable had “Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed,” the court cautioned (IBP v. Alvarez, 03-1238 (U.S. 2005)).

Joe Hansen, president of the United Food and Commercial Workers International Union, welcomed the decision, saying that the meat industry has “long insisted that workers’ paid time does not include as much as 30 to 40 minutes per day spent collecting and putting on their gear and walking to their station on the production line. Today, the Supreme Court justices unanimously agreed that workers deserve to be paid for that time.”

He remarked that “the fact that the U.S. Supreme Court had to rule on such a case speaks volumes about the greed and arrogance of employers in this country.”

Downward pressure

But the ruling, which resolves the FLSA claims against IBP and Barber, is likely to lead to “more downward pressure on employee wages, benefits and jobs,” Riegel predicted. “Of course, every additional cost has to be paid for somehow, so consumers may pay higher prices and workers may suffer from lower hourly wages and benefits or lost jobs.”

Industries that will be hit the hardest will include automobile manufacturers, the poultry and beef processing industry, electricians, professions that require employees to wear uniforms, delivery services, and the construction and chemical industries, he forecast.

Employers that do not have compensation systems that jibe with the Supreme Court’s ruling will have to adjust their compensation systems. “I expect there will be some difficulties trying to decide whether the decision applies retroactively,” he added. While Riegel assumes it does not, he said there likely will be litigation over whether it does.

There is a ray of light for employers though, Costagliola said, referring to the court’s determination that waiting before donning safety gear is not compensable. “At least the court has drawn a line somewhere,” he observed.

Allen Smith, J.D., is senior legal editor for HR News.

Related article:
Supreme Court in flux to rule in private, public workplace cases
, HR News, Oct. 12, 2005.

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