Today’s Grants: Tum and Alvarez

The Court today granted certiorari in, and consolidated, two related cases, Tum v. Barber Foods, Inc. (in which Goldstein & Howe represents the petitioners) and IBP, Inc. v. Alvarez. Both involve Fair Labor Standards Act suits by hourly employees at meat processing plants seeking compensation for time they spend each day acquiring, donning, and doffing the special safety equipment their jobs demand. Both the First Circuit (in Tum) and the Ninth Circuit (in Alvarez) held, following the Supreme Court’s decision in Steiner v. Mitchell (1956), that the time the employees spent actually donning and doffing the equipment was compensable work time under the FLSA, and the Court denied the Tum cross-petition presenting that issue. Instead, the Court will consider the compensability of the time spent walking between the employees’ changing areas and equipment distribution stations, as well as time spent waiting in line at those stations. In Tum, the First Circuit denied compensation for walking and waiting time; in Alvarez, the Ninth Circuit granted it.

The case will turn in part on the Court’s interpretation of the Portal-to-Portal Act, 29 U.S.C. 254, which amended the FLSA to deem noncompensable activities that are merely “preliminary or postliminary” to the “principal activity or activities which such employee is employed to perform.” In Steiner, the Supreme Court held that activities that are “integral and indispensable” to an employee’s principal job activity are not merely preliminary or postliminary, and thus are compensable. It further held that time spent donning and doffing safety equipment necessitated by dangerous job conditions met this test. Plaintiffs argue in this case that the walking and waiting time at issue is equally “integral and indispensable.”

Even if the Court rejects that view, it could still rule in plaintiffs’ favor (at least as to some of the disputed time) if it defers to the Department of Labor’s interpretation of the “workday” under FLSA. The Department, which filed amicus briefs on plaintiffs’ side below, maintains that the FLSA “workday” runs continuously between the first and last compensable activities of the day, excluding lunch and other bona fide breaks; the compensation clock does not start and stop each time employees move between compensable and noncompensable activities. Under this view, any walking and waiting time that occurred in between compensable activities (e.g., donning the first item and doffing the last) would be included in the workday and compensated.