Supremes Clarify Portal-to-Portal Act?

In a recent opinion, IBP, Inc. v. Alvarez, the Supreme Court has finally provided employers with a "bright-line" test for use in deciding when activities performed by employees constitute compensable time under the Fair Labor Standards Act ("FLSA"). Not really. Instead, the Court has again applied a law intended to provide a bright-line test for employers, in a manner that does anything but provide that test.

Decades ago, after the Court ruled that the term "workweek" in the FLSA included the time employees spent walking from time clocks near a factory entrance to their workstations in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), Congress passed the Portal-to-Portal Act of 1947, in order to make such activities noncompensable. Unfortunately, in attempting to do this, the legislature used the phrases "principal activity or activities," "preliminary or postliminary," and "said principal activity or activities" in attempting to do this. No surprise. These phrases have not provided much help to employers in deciding when to classify activities of employees as compensable. Neither the regulations passed to implement the Act, nor the cases that have followed the regulations provided much in the way of an easily applied test. Rather, employers have been, and will continue to be stuck with making their best assessment of a specific situation on a case-by-case basis.

Regulations promulgated by the Secretary of Labor shortly after the Act was passed concluded that the Act did not affect the computation of hours within a "workday," 29 CFR § 790.6(a), which includes "the period between the commencement and completion" of the "principal activity or activities," §790.6(b). Eight years after the enactment of the Portal-to-Portal Act and these interpretative regulations, the Supreme Court explained only that the "term 'principal activity or activities' … embraces all activities which are 'an integral and indispensable part of the principal activities,'" including 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).

IBP, Inc. v. Alvarez decided two cases where employees filed class actions. In one, employees sought compensation for time spent donning and doffing required protective gear and walking from the locker rooms to the production floor of a meat processing facility and back. The District Court found the activities compensable, and the Ninth Circuit affirmed. In the other, employees sought compensation for time spent donning and doffing required protective gear at a poultry processing plant, as well as the attendant walking and waiting times. In this second one, the employer had prevailed on the walking and waiting claims. The time spent walking to the time clock after donning protective clothing was determined noncompensable. On appeal, the First Circuit agreed, and found those times preliminary and postliminary activities excluded from FLSA coverage by §§4(a)(1) and (2) of the Portal-to-Portal Act.  The Supreme Court, in a unanimous opinion, affirmed the Ninth Circuit's decision, but reversed the First Circuit, at least in part.

The Supreme Court held that the FLSA required that all employees be paid wages for the time they spent walking to their work stations from the place where they put on required protective clothing. The Court also held that the employees must be paid for the whole day, including time spent waiting to take off the clothing. According to the Court, the day ended when the employees took off the protective clothing. However, the Court also decided that the employees did not have to be paid for time spent waiting to put on the first piece of protective clothing.

Because the decisions were based, as always seems to be the case, on the specific facts of each case, they really do not provide a bright-line test for determining the difference between preliminary and postliminary activities in every case. The decisions do, however, provide some further guidance for employers.

If an employee, for whatever reason, is required to wear protective clothing to perform his job, all time spent putting the clothing on and taking the clothing off, is probably compensable. Similarly, time spent walking to the factory floor following the donning of the clothing, is also compensable. The workday begins when the employee starts putting the clothing on, and ends when the employee has finished taking the clothing off, at least if your facts line up pretty well with those in these cases. The answer could be different if, for example, the employee has the option of putting the clothing on before coming to work, or the employee has something else to do, such as take a shower, following removal of the clothing. In such cases, unfortunately, an employer will have to make its best decision under the circumstances. Any decision to treat the activity as noncompensable, of course, may very well be subject to second-guessing later.