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Supreme Court Rules that Hourly Workers Must Be Paid for Time Spent Walking Between Workplace and Place of “Donning” and “Doffing” of Protective Equipment

Volume 4, Issue 13
November 11, 2005

A unanimous United States Supreme Court held on Tuesday that employees in meat processing plants must be paid for the time they spend walking between the place where they put on (don) and take off (doff) elaborate protective equipment and their work stations. The Court also ruled that, absent an employer requirement, pre-shift time spent by employees waiting to begin a primary work activity (in this case waiting in line to get the necessary protective gear) is not time for which employees must be paid.

In IBP, Inc. v. Alvarez, the employees in question were required to don, prior to going to their work stations, elaborate gear to protect their safety, such as chain link metal aprons, vests, and plexiglass armguards. The company required employees to store this equipment in company locker rooms, where most of them donned this gear. They then walked to their work stations. Three questions were addressed by the Court: (1) Whether the time spent donning and doffing the gear was compensable as an "integral and indispensable part of the principal activities" of these employees; (2) Whether the time walking between the locker room and the work station was compensable as part of the "workday" because it occurred after donning and before doffing; and (3)Whether time waiting to don the gear was compensable.

The Court quickly disposed of the first issue, requiring payment for the donning/doffing time for elaborate protective equipment; this case offers nothing new with respect to this issue as the law had been well-established since at least 1956. The decision on the second issue, the compensability of "walking time," turned upon the Court's view that, in these cases, the employees had begun and ended their work days with the "principal [and compensable] activity" of donning/doffing the gear, and they were walking between that and another "principal activity". As such, walking became part of the workday.

The Court's ruling on the waiting time issue was pro-employer. Although this waiting time was two steps removed from any productive activity, the employees argued it was "integral and indispensable" to a "principal activity." The Court rejected this argument, noting that "waiting may or may not be necessary in particular situations or for every employee." Instead, the Justices recognized that waiting time in this case "comfortably" qualified as a "preliminary activity" not compensable under the Portal-to-Portal Act passed by Congress in 1947 specifically to exclude such activities. The Court noted its ruling would differ if the employer "required its employees to arrive at a particular time in order to begin waiting."

Somewhat disappointing was the Court's side-stepping of any real discussion of the "de minimis" doctrine, which provides that in recording working time, insignificant periods beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. In 1946, the Supreme Court explained that the de minimis doctrine only applies to situations in which the activity at issue only concerns a few seconds or minutes at work beyond the scheduled working hours. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). The Supreme Court likely did not discuss the de minimis doctrine in any detail because the time it took the employees to don and doff their protective gear was more than a few seconds or minutes. A better explanation of this doctrine would have been helpful.

Following this ruling, employers should give renewed examination to certain pre-shift and post-shift employment activities and evaluate the risks that may be indicated by their pay practices. The application of the technical FLSA issues associated with this case will vary, depending upon the industry and, in fact, the practices utilized by each company and applied to each of that company's non-exempt hourly job classifications.

Practically (and not legally) speaking, the dialogue on pay practices that should result from this case has implications for the goal of fostering good labor relations - as employees who feel they are not compensated for real work they perform are more likely to develop the type of animosity that leads to poor customer service, employee theft, fraudulent workers' compensation claims, union organizing, grievances, administrative charges, litigation and other management headaches. Moreover, the costs of defending against allegations of FLSA violations are substantial, even if those activities are ultimately found to be in compliance with the FLSA.

The complete decision can be found at:

IBP, Inc. v. Alvarez, No. 03-1238, --- U.S. ---, 2005 WL 2978311 (U.S. Nov. 8. 2005)

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.