To pay or not to pay? 'Don and doff' rules get new wrinkle

In a recent consolidated opinion, IBP, Inc., v.

Alvarez,No.

03-1238, and Tum v.

Barber Foods, Inc.,No.

04-66 (Nov.

8, 2005), a unanimous U.S.

Supreme Court held that employees must be compensated under the Fair Labor Standards Act, as amended by the Portal-to- Portal Act of 1947, for time spent walking from their employer's locker room to the work floor after "donning," or putting on, unique protective gear, as well as time spent waiting to "doff," or take off, unique protective gear.

The Court also held that time spent waiting to don protective gear is excluded from FLSA coverage by the Portal-to-Portal Act, and that employers are not required to compensate employees for that waiting time.

At IB, Inc., a large producer of fresh meat products in Washington state, all production workers were required to wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots.Many of them, particularly those who used knives, also had to wear a variety of protective equipment for their hands, arms, torsos, and legs.

This gear included chain link metal aprons, vests, plexiglass armguards, and special gloves.

The company required its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear.

Under IBP policy, production employees were compensated only from the time they cut and bagged their first piece of meat of the day until the time they cut and bagged their last piece of meat of the day.

IBP also paid production employees for four minutes of clotheschanging time.

IBP employees filed a collective action under the FLSA to recover compensation for pre-production and post-production work, including the time spent donning and doffing protective gear and walking between the locker rooms and production floor before and after their assigned shifts.

Similarly, Barber Foods, Inc., a poultry processor in Maine, required production employees to wear different combinations of protective clothing.

Under Barber Foods' policy, the official workday for production employees started from the time they punched in at computerized time clocks near the production floor entrance.

Barber employees and former employees brought an action claiming that Barber's failure to compensate them for time spent donning and doffing the required protective gear and the attendant walking and waiting time violated the FLSA.

Congress originally enacted the Portal-to- Portal Act, a significant amendment to the FLSA, in response to a controversial U.S.

Supreme Court decision.

The Portal-to-Portal Act defines the "workday" and makes certain "preliminary or postliminary"work non-compensable.

The U.S.

Supreme Court's decision in IBP and Barber Foods turned upon its interpretation of Sections 4(a)(1) and(2) of the Portal-to-Portal Act.

U.S.Department of Labor regulations implementing the Portal-to-Portal Act affirm the FLSA's definition of a "workday" as "the period between the commencement and completion" of the "principal activity or activities." In Steiner v.

Mitchell, 350 U.S.

247, 256 (1955), the Supreme Court held 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 protective clothing "before or after the regular work shift, on or off of the production line."

IBP argued in its case before the Supreme Court, that although the donning and doffing of protective gear was "sufficiently principal" to be compensable, those actions did not qualify as a "principal activity."Therefore, IBP argued, employees should not be paid for the post-don and predoff walking time.

The Portal-to-Portal Act excludes certain activities from the coverage of the FLSA.

In particular, Section 4(a)(2) excludes "[a]ctivities which are preliminary to 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 any particular workday at which he ceases, such principal activity or activities."Barber Foods argued that the waiting time associated with both donning and doffing of protective gear was "preliminary or postliminary activity," and therefore not compensable under the FLSA.

The U.S.

Supreme Court held, in a unanimous decision, that time spent walking to or from the work floor after donning or before doffing unique gear was compensable because the donning and doffing was "sufficiently principal." The Court stated that IBP's employee locker rooms, where the special gear was donned and doffed,were the relevant "places of performance" of the principal activity.

Importantly, the U.S.

Supreme Court determined that the walking in IBP was fundamentally different from walking to a place of performance before starting work an act expressly excluded from FLSA coverage by the Portal-to Portal Act.

Instead, the Court analogized the facts of IBP to time spent walking between two different positions on an assembly line, which is compensable under the act.

Ultimately, the Court held that any activity that is "integral and indispensable" to a "principal activity," like donning and doffing unique protective gear, is itself a "principal activity" under Section 4(a) of the Portal-to-Portal Act.

Moreover, the Court held 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 compensable under the FLSA.

A unanimous U.S.

Supreme Court also ruled against Barber Foods, holding that because doffing required gear that is "integral and indispensable" to an employee's work is a "principal activity," time spent waiting to doff is also compensable.However, time spent waiting to don protective gear was deemed not "integral and indispensable," but rather "preliminary."

Therefore, the Court held that time spent waiting to don protective gear was not compensable under the FLSA.

Karyn M.

Taylor is an attorney with the Reno office of Littler Mendelson, P.C.

the largest labor and employment law firm in the country.