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Tyson Foods, the world’s largest supplier of meats, is trying to enlist the Supreme Court in its dispute with slaughterhouse workers over their claim that they should be paid for the time it takes to change into protective clothing and walk to and from their work stations. In a petition filed by Carter Phillips of Sidley Austin Brown & Wood, the company is hoping to reverse a ruling that awarded workers at its Pasco, Wash., plant more than $3 million in damages for its failure to pay workers for the time at issue. The case is called IBP Inc. v. Alvarez, No. 03-1238. IBP was taken over by Tyson in 2001, after the suit was filed. Citing conflicting rulings in circuits across the country, a brief filed by the National Chicken Council and other industry groups also urges the high court to grant review. “The issue raised by this case regarding the compensability of walking time is extremely important” to the meat industry, says David Wylie of Haynsworth Baldwin Johnson & Greaves in Greenville, S.C., author of the industry brief. The case is one of dozens that the Court will discuss at its private conference April 30. The Court could announce on May 3 whether it will review the case. The original lawsuit was brought in the U.S. District Court for the Eastern District of Washington on behalf of 815 beef slaughter and processing workers, citing violations of federal and state labor laws. They sought compensation for the time they spend donning and doffing protective clothing they are required to wear for health and safety reasons, and for the time then needed to walk between locker rooms where they change and their work stations at the beginning and end of their shifts. U.S. District Judge Robert Whaley sided with the workers. IBP appealed, citing sections of federal law that allow employers not to pay workers for time spent “changing clothes” or walking to and from work areas. The Labor Department also weighed in, with then-Labor Solicitor Eugene Scalia filing a brief agreeing that the walking time should be compensated. On the clothing issue, the department reversed a Clinton-era interpretation and sided with the company, finding that companies did not have to compensate workers for the time spent putting on and taking off the garments and protective gear. The San Francisco-based U.S. Court of Appeals for the 9th Circuit affirmed the District Court, rejecting IBP’s arguments. The statute, wrote Judge Sidney Thomas, could not be read to “lead to the conclusion that a workday may be commenced, then stopped while the employee is walking to his station, then recommenced when the walking is done.” On the clothing issue, the panel agreed that the specialized gear required by the employer was “different in kind from typical clothing,” and therefore the workers’ time should be compensated. Thomas also noted that since the publication of Upton Sinclair’s The Jungle in 1906, the meatpacking industry has been heavily regulated, yet still remains “one of the most dangerous jobs in America.” On a lighter note, Thomas also said, “Perhaps the packing plant employees in Pasco, Wash. should have heeded Henry David Thoreau’s warning to ‘beware of all enterprises that require new clothes.’ ” Thomas was joined by circuit Judge Dorothy Nelson and Judge Susan Illston of the Northern District of California, sitting by designation. Phillips, in his brief for IBP, notes that the Boston-based 1st Circuit “squarely rejected” the 9th Circuit’s reasoning in a decision last year, and a deicison by the Denver-based 10th Circuit also ruled differently in a case involving IBP. The brief for the workers in the case argues that there is no significant circuit conflict on the issue and that the 9th Circuit ruling is correct and should not be disturbed. “The few opinions to date are intensely fact-bound,” writes William Rutzick of Schroeter Goldmark & Bender in Seattle. “They involve only a few industries and small amounts of time.” OTHER CASES UP FOR REVIEW • Hatchett v. United States, No. 03-992. Whether the U.S. government may sell the property of nontaxpayers in an administrative levy. • South Dakota Secretary of State v. South Dakota Farm Bureau Inc., No. 03-1111. Whether state limitations on corporate farming violate the U.S. Constitution’s commerce clause. • Leavitt v. Tennessee Valley Authority, No. 03-1162. Whether the Environmental Protection Agency can order the TVA, another executive branch agency, to comply with the Clean Air Act. • In re Green Tree Financial Corp., No. 03-1243. Whether class arbitration of consumer claims is permissible under the Federal Arbitration Act. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects cases from petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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