IBP v. Alvarez.

• Author: Dastoor, Neville F.
• Position: Compensation for time putting on and taking off protective clothing

The U. S. Supreme Court recently resolved a conflict between federal courts of appeals regarding the provisions of the Fair Labor Standards Act (FLSA) that require compensation to employees for the time spent donning (applying) and doffing (removing) specialized protective gear. In IBP Inc. v. Alvarez, 163 L. Ed. 2d 288, 302 (2005), the Court held that employees are to be compensated for the time spent walking between their changing areas and their work areas after donning and before doffing their specialized protective gear. The Court also held that employees must be compensated for time spent waiting to doff their specialized equipment, but not for time spent waiting to don the equipment. (1)

While the holding creates a clearer picture of what is included within the compensable workday, the Court's opinion still leaves unanswered questions concerning the scope of its decision. In addition, there appear to be inconsistencies in the opinion's language that may require further clarification.

History of Portal-to-Portal Act Amendments

The controversy addressed by the Court in IBP concerned the interpretation of [section] 4 of the Portal-to-Portal Act, the statutory response to what Congress considered an expansive judicial interpretation of compensable "work" under the FLSA. (2) While the FLSA does not explicitly define "work," early Supreme Court cases interpreted the term to encompass activities related, but not necessarily vital to the specific task for which an employee was hired. For example, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court held that the time employees spent walking from time clocks located at an employer's entrance gate to the factory floor was compensable working time. (3)

Congress believed that such a broad interpretation of compensable time imposed "wholly unexpected liabilities, immense in amount" (4) upon employers and, in response, enacted the Portal-to-Portal Act of 1947 to more specifically define compensable work under the FLSA. Accordingly, [section] 4(a)(1) of the act exempts from compensable time "walking, riding, and traveling to and from the actual place of performance of an employee's principal activity or activities," and [section] 4(a)(2) exempts "activities which are preliminary to or postliminary to said principal activity or activities." (5) What the Portal-to-Portal Act clearly does not do is address compensation for activities occurring between the workday's first and last principal activities. Instead, that period is governed by the "continuous workday rule," i.e., the "workday" is defined as "the period between the commencement and completion on the same workday of an employee's principal activity or activities." (6)

* Steiner v. Mitchell

Predictably, the Portal-to-Portal Act's emphasis on "principal activity or activities" raised a question as to the term's precise meaning, which was addressed in the 1956 Supreme Court case Steiner v. Mitchell, 350 U.S. 247 (1956). In Steiner, the production employees of a battery plant were required to don protective work clothes before their productive work, and to shower and change back into their personal clothes at the end of the productive work, in order to avoid exposure to toxic chemicals. (7) The employees were not compensated for this time. (8) The employees argued that the precautionary measures were essential components of their principal activities and, therefore, subject to compensation. (9) The employers countered that such measures were preliminary and/or postliminary to the employees' principal activity, specifically excluded from compensable work time under [section] 4(a)(2) of the Portal-to-Portal Act. (10)

In affirming the lower court's decision, the Steiner Court held that the employees should be compensated for the time spent showering and donning and doffing their protective work clothes because they were "integral and indispensable" to the principal activity of battery production. (11) Citing the legislative history behind the Portal-to-Portal Act, the Court explained that the definition of the term "principal activity or activities" includes those activities which are "integral and indispensable" to the principal activities rendering such activities as "principal" themselves. (12) Because the principal activity of battery production could not be accomplished without protecting employees from toxic chemicals, the protective measures were integral and indispensable to, and therefore a part of, that principal activity.

The...