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In a unanimous decision this fall, the U.S. Supreme Court settled a split between the 1st and 9th Circuits by ruling that the time spent by employees walking back and forth between their workstations and the area in which they don and doff protective gear is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947. The Court also decided that the time spent by employees waiting to receive the required protective gear may not be compensable, while the waiting time to doff the same gear is always compensable. The Court’s rulings in IBP v. Alvarez and Tum v. Barber Foods, 05 C.D.O.S. 9641, will have a significant impact on businesses in many states because they extend beyond the meat and poultry industries. All employees who are required to don and doff unique, protective gear, which could potentially include employees in medical, dental, engineering, waste disposal, food services and other industries, will have to be compensated in accordance with the rulings. Further, although the actual time spent walking and donning/doffing may take just a few minutes per day for each employee, the economic impact could be substantial when multiplied by hundreds or thousands of employees. Some employers, however, may be able to avoid the consequences of this ruling to the extent they can show the protective gear is not unique or it is “de minimus,” an issue the Court failed to address in great detail. In IBP v. Alvarez, employees who worked in the slaughter and processing divisions of a producer of beef, pork and related products were required to wear outer garments, hard hats, hairnets, earplugs, gloves, sleeves, aprons, leggings and boots. Those who used knives were also required to wear protective equipment for their hands, arms, torsos and legs, including chain-link aprons, vests, Plexiglas armguards and special gloves. Company policy also required the employees to store the protective gear in company locker rooms. The 9th Circuit held that the time spent walking back and forth between locker rooms and the production area was compensable under the FLSA, along with the time spent donning and doffing the protective gear. Although IBP Inc. did not challenge the ruling to compensate employees for donning and doffing the protective gear, it appealed the decision to compensate employees for the walking time. On Nov. 8, the U.S. Supreme Court agreed with the 9th Circuit that the time spent walking between the production floor and the locker rooms should be compensable. In reaching this decision, the Court acknowledged that �4(a) of the Portal-to-Portal Act excepted the following activities from the FLSA’s coverage, including its requirement that employees be compensated for the same: (a) walking, riding or traveling to and from the actual place of performance of the employee’s “principal activity or activities” (�4(a)(1)); and (b) activities that are “preliminary or postliminary” to said principal activity or activities (�4(a)(2)). However, the court noted that after the enactment of the Portal-to-Portal Act, the term “principal activity or activities” was found to embrace all activities which are an “integral and indispensable” part of the principal activities, such as the donning and doffing of specialized protective gear before or after the regular work shift, on or off the production line. See Steiner v. Mitchell, 350 U.S. 247 (1956). As a result, the locker rooms where the required protective gear was donned and doffed was deemed the relevant “place of performance” of the principal activity under �4(a)(1). Based thereon, the court determined that the time spent walking to the locker rooms before starting work was excluded from the FLSA’s coverage. On the other hand, the court found that �4(a) did not exclude from the FLSA’s coverage the time spent walking from the locker rooms to the production floor immediately after the workday commenced with the donning of protective gear. The court reasoned the time was comparable to the time spent walking between two positions on an assembly line, which is compensable under regulations issued by the Secretary of Labor. 29 CFR ��785.38 and 790.7(c). Finally, the court stated that this conclusion was consistent with the continuous workday rule established by the Department of Labor, which defines the “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 CFR �790.6(b). In particular, the periods of time in a particular workday must be included in the computation of hours worked as if the Portal-to-Portal Act had not been enacted. In the companion case of Tum v. Barber Foods, the Court elaborated upon these findings and made additional rulings. In that case, the employer operated a poultry processing plant, in which its production employees performed a variety of tasks that required different combinations of protective clothing. Contrary to the 9th Circuit, the 1st Circuit determined that the time spent by employees walking between the production floor and the area where they don and doff required protective gear was not compensable. In addition, the 1st Circuit found that the time spent waiting to don and doff the required protective gear was not compensable. For the reasons discussed above, the court disagreed with the 1st Circuit and ruled that the walking time was compensable. In addition, the Court ruled pre-doffing waiting time is compensable because doffing protective gear that is “integral and indispensable” to an employee’s work is a “principal activity” under �4(a). Under the continuous workday rule, pre-doffing waiting time occurs during the workday and is not affected by the Portal-to-Portal Act. However, the court decided the time spent waiting to don required protective gear may or may not be necessary for every employee. Unlike donning protective gear, the waiting time to don protective gear is not “integral and indispensable,” but always qualifies as a “preliminary activity” under �4(a). The court was careful to note that its decision would have been different if Barber Foods Inc. required its employees to arrive at a particular time in order to begin waiting or if employees were required to report to a changing area at a specific time only to find no protective gear was available until after some time had elapsed. Unlike many other states, the Court’s rulings should not have a radical impact on the way employees are compensated under California law. The Industrial Welfare Commission, an agency empowered to formulate regulations governing employment in California, has issued wage orders defining “hours worked” as “‘the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.’” The case is Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000). In Morillion, the California Supreme Court found it was necessary that the worker be subject to the “control of the employer” in order to be entitled to compensation. Although not factually the same, the Morillion decision provides some insight regarding how the Court may rule on the issue of walking and waiting time in California, as it found Royal Packing controlled its employees within the meaning of “hours worked” by requiring them to meet at departure points at a certain time to take buses to work (prohibiting employees from taking their own cars). Moreover, the Department of Labor Standards Enforcement, the state agency empowered to enforce California’s labor laws, including IWC’s wage orders, has issued advice letters on this subject, which have been deemed persuasive authority by the courts. Like the U.S. Supreme Court’s interpretation of the FLSA, as amended by the Portal-to-Portal Act, the DLSE has opined that the time spent changing clothes may be compensable under California law if it is determined that the activity was compelled by the necessities of the employer’s business. Cal. Dept. Industrial Relations, DLSE Chief Counsel H. Thomas Cadell, advice letter, “Compensable Time” (Feb. 3, 1994) pp. 4-5. For example, where the temperature in the work area would make the wearing of warm clothing, which would not ordinarily be worn by the employee, necessary to perform the work. Further, in the same advice letter, the DLSE opined that the time spent walking on an employer’s premises, where the employees are compelled to do by the necessities of the employer’s business, is compensable under California law. More specifically, in a subsequent advice letter, the DLSE opined that employees should be compensated under California law for the following required activities: (1) picking up and returning uniforms from a central wardrobe facility, which was approximately an 8- to 10-minute walk from employee dressing rooms; (2) waiting to obtain and return the uniforms, which could exceed a half hour; (3) donning and doffing uniforms in employee dressing rooms; and (4) waiting in a holding area for approximately 12 minutes at the end of a work shift until released. (Cal. Dept. Industrial Relations, DLSE Chief Counsel Miles Locker, advice letter, “Whether Time Spent Changing Into or Out of Required Uniforms Constitutes “Hours Worked” and the Effect of a Collective Bargaining Agreement on Determining “Hours Worked” (Dec. 23, 1998) pp. 1-5.) The DLSE also noted that although the Portal-to-Portal Act excluded from the FLSA’s coverage certain activities which are “preliminary and postliminary” to an employee’s “principal activity or activities,” the IWC has never seen fit to restrict the state definition of “hours worked” in the same manner. To the extent, however, California law is deemed unclear or undecided on this subject, the decisions in IBP v. Alvarez and Tum v. Barber Foods leave no doubt that California employees must be compensated for the time spent walking back and forth between their workstations and the area in which they don and doff required protective gear under the FLSA. Further, based on these cases, there is no question that the time spent by California employees waiting to receive the required protective gear may not be compensable, unless they are required to report at a particular time and wait, while the waiting time to doff the same gear is always compensable under the FLSA. This is so because in California, employees are entitled to the greatest protection with respect to their compensation, whether offered by federal or California law. Kevin Woodall is a partner in the San Francisco office of Foley & Lardner and a member of the firm’s litigation department and its labor and employment practice group.

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