Supreme Court Provides Guidance on when Walking and Waiting to Work is Compensable

November 10, 2005

On Tuesday, November 8, 2005, the U.S. Supreme Court issued its first opinion of the new term, IBP, Inc. v. Alvarez.  The case addressed two wage and hour questions: (1) whether the time employees spend walking between their changing area and the production area is paid time under the Fair Labor Standards Act (FLSA), and (2) whether the time employees spend waiting to put on and take off their protective gear is paid time under the same statute.  The Supreme Court’s answers to these questions are “yes,” and “no and yes,” respectively.

The Court analyzed both issues under the Portal-to-Portal Act, which amended the FLSA in 1948.  That Act narrowed the coverage of the FLSA by excluding two activities that had previously been treated as paid time: walking on the employer’s premises to and from the actual place of performance of the principal activity of the employee, and activities that are “preliminary or postliminary” to that principal activity. 

In IBP, the employer argued that the time employees spend walking between their changing area and the production area is unpaid time under the FLSA.  The Courts had previously established that time spent walking to the work site after clocking in is unpaid time under the Portal-to-Portal Act.  The employer therefore argued that time spent walking to the work site after changing clothes is also unpaid time.  The Supreme Court rejected that argument.  Time spent walking to the work site by IBP employees is different, the Court stated, because it occurs after the workday begins and before it ends.  The Court held that the work day began with the “donning” (i.e., locating and putting on) of protective gear, and ended with the “doffing” (i.e., removing and storing) of that gear.  Walking time that occurred in between those two events was more like time spent walking between two work stations during the day, which has long been considered paid time.

In a companion case involving Barber Foods, Inc., the Supreme Court addressed the issue of whether waiting time is compensable in connection with donning and doffing of protective gear.  Must employees be paid for time spent waiting to put on and take off protective gear?  Again, the Court considered the work day to begin when an employee puts on the protective clothing, and end when the clothing is removed.  Thus, the Court held that time spent waiting for protective gear to be distributed at the beginning of the day is not compensable, but time spent waiting to remove that same gear at the end of the day is paid time.

Both decisions were unanimous, and they may provide insight into the direction of the Court with respect to future wage and hour issues.  The principles announced in these cases could be applied in a broad array of other contexts.  There are undoubtedly many employers who must now reevaluate their wage policies in light of these new rulings.  If you feel that you may be one of these employers, please contact an attorney in our Labor and Employment Department for further details.

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