United States: Supreme Court Holds That Time Spent Traveling To and From Work Areas to "Don and Doff" Protective Gear Is Compensable

In the first decisions issued by the Supreme Court under Chief Justice Roberts, the Court ruled that, under the Fair Labor Standards Act (FLSA), employees must be paid 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 walking to and waiting to "doff," or take off, unique protective gear. IBP, Inc., v. Alvarez, No. 03-1238, and Tum v. Barber Foods, Inc., No. 04-66 (Nov. 8, 2005). The Court also ruled that the employers are not required to pay employees for the time they spend waiting to don their protective gear.

These cases apply directly principally to the production sector. Given the rise in wage and hour collective and class actions recently, however, they give all employers an incentive to review their compensation policies for activities undertaken at the beginning and end of the workday and ensure that they comply with the law.

The FLSA does not define the beginning and end of a workday. In 1946, the Supreme Court ruled that employees were entitled to be paid for the time spent walking from time clocks near a factory entrance to their workstations. In response, Congress passed the Portal-to-Portal Act of 1947, which excluded from the work time compensable under the FLSA time spent walking on the employer’s premises to and from the location of the employee’s "principal activity or activities," and also activities that are "preliminary or postliminary" to "said principal activity or activities." Regulations promulgated by the Secretary of Labor shortly thereafter stated that the workday for which employees must be compensated includes "the period between the commencement and completion" of the "principal activity or activities."

In 1956, the Supreme Court ruled that the "principal activities" that start the workday under the FLSA embrace "all activities which are ‘an integral and indispensable part of the principal activities.’" Under this ruling, compensable time includes the donning and doffing of specialized protective gear "before or after the regular work shift, on or off the production line." Steiner v. Mitchell, 350 U.S. 247, 256 (1956). Thus, the Supreme Court ruled, employers must pay their employees for the time spent putting on and taking off "unique" or "specialized" protective gear. The question in the Supreme Court’s recent decision is whether an employer also has to pay employees for the time spent waiting to don their equipment, and to pay them for the time spent walking to and from the locker room to and from their actual place of work.

The Supreme Court’s decision pertained to two separate cases involving two unrelated employers with slightly different issues. The two employers, IBP, Inc. and Barber Foods, are both meat processors. Both required their production employees to wear specialized protective equipment. Both also required employees to store that equipment in company locker rooms, where they donned and doffed the gear. Under IBP policy, production employees were paid 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, plus four minutes of clothes-changing time. 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. They were not paid for donning, doffing, or the time spent waiting to don and doff, and walking to and from their places of work.

Employees of both IBP and Barber Foods sued, claiming that their employers violated the FLSA by failing to pay them for the time spent waiting in the locker room to don and doff their equipment and the time spent walking to and from their place of work after donning and before doffing their equipment.

The U.S. Supreme Court ruled that time spent walking to and from the work floor after donning or before doffing unique gear was compensable because the donning and doffing was a "principal activity" that started the workday. In other words, because the employer required the employees to put on and take off this specific protective equipment in a specific place, the acts of putting on and taking off that equipment were part of their actual work, and started the obligation to pay them. The Court said that for IBP employees, the time spent walking to and from the locker room was identical to walking between two different positions on an assembly line, which is clearly compensable under the FLSA. More generally, the Court stated that under what is called the "continuous workday rule," any walking 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.

Importantly, the Court was careful to distinguish the walking in IBP from the general act of walking to and from the place of performance before and after starting work – which the Portal to Portal Act excludes from compensable time. For example, an employer is not required to pay an employee for the time spent walking from the plant entrance to his or her work area if he or she does not perform any work until he or she reaches the work area. The difference in IBP was that the "donning and doffing" was actual work which started the workday.

In Barber Foods’ case, the Court ruled that because doffing required gear is also a principal activity, time spent waiting to doff required equipment is compensable. However, it concluded that the time spent waiting to don protective gear is not compensable. Because the actual work does not start until donning starts, waiting to don gear is a considered a preliminary activity similar to walking from the plant entrance to the work area and therefore is not compensable.

This decision is important in clarifying the compensability of time spent donning and doffing required protective gear and associated activities. Although the liability to an individual employee for failing to properly pay for donning, doffing, or walking time, or other start and end of work day activities, may not be significant, the collective amount owed to a large group of employees, particularly when calculated over the weeks and months of noncompliance, may be substantial. And that is just the kind of situation that plaintiffs’ attorneys are looking to turn into a collective action for FLSA violations.

As a result, employers in the production sector must now carefully reconsider their compensation practices. Because the workday starts and ends when employees don and doff, employers should re-assess whether the protective gear their employees are required to wear may be considered "unique" in light of this recent U.S. Supreme Court guidance and pay them accordingly.

But the decision may have impact outside the production sector as well. The Supreme Court adopted a general rule that once the compensable workday starts, an employer cannot carve out a block of non-compensable time. This ruling may lead to claims for compensation in circumstances currently now deemed non-compensable. For example, what if an employee calls from home to discuss a work-related matter with a supervisor for 45 minutes before coming in? Although the employee’s commute to work would usually be non-compensable, the conversation with the supervisor may be considered a principal activity that would start the work day, potentially requiring the employer to pay the employee for the commute. Other similar job-related activities performed remotely may turn non-compensable commutes into compensable time. Another potential source of compensation may be breaks. Under the FLSA, an employer does not have to pay employees for a lunch break of at least 30 minutes, if the employee is relieved of duties. However, under the FLSA regulations, an employer must pay for breaks of less than 20 minutes. But what happens with breaks that last between 20 and 30 minutes? Under the Surpeme Court’s continuous workday rule, they may be compensable now.

Finally, and of greatest concern to employers, the decision is likely to sensitize plaintiffs’ attorneys to issues relating to when compensable time starts and the compensability of certain activities at the beginning and end of the workday. In light of the decision, and the anticipated increase in collective action lawsuits in this area, employers should consult with counsel to determine whether the activities their employees perform at the beginning and end of the day, and their compensation practices in general, comply withthe FLSA and these decisions.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.