• The United States Supreme Court Holds That Employees Must Be Paid For Time Spent Walking to Production Area After Donning Required Protective Gear, But Not For Time Waiting To Don The Gear
  • December 16, 2005
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • In a unanimous ruling, the United States Supreme Court decided that employees must be compensated for time spent donning and doffing protective safety gear and then walking from the locker room to his/her work station. However, the Court specifically excluded time spent waiting to don protective gear. The Court's ruling applies to two cases, IBP Inc. v. Alvarez, U.S. No. 03-1238, and Tum v. Barber Foods, Inc., U.S. No. 04-66.

    In IBP, the workers had filed a class action seeking compensation for time spent putting on and taking off required safety gear and walking from the locker room to the production floor. The United States Court of Appeals for the Ninth Circuit ruled that employees had to be paid from the moment that they began donning safety gear required by their jobs until they doffed their gear, including walking time.

    In Tum, the employees sought compensation for time spent donning and doffing required gear as well as the walking and waiting times. The district court found all those times to be preliminary and not compensable. The First Circuit Court of Appeals upheld the district court and found that the times were excluded from the Fair Labor Standards Act.

    The Supreme Court took up the question concerning the coverage of the FLSA as amended by the Portal-to-Portal Act with regard to activities of employees who are required to wear protective clothing before they engage in their work duties for which they primarily are hired. Specifically, the Court answered two questions:

    1. Whether the time spent walking from the locker room or other changing area to the production area is compensable under the FLSA; and
    2. Whether the time employees spend waiting to put on the required protective gear is compensable under the FLSA.

    The Court previously held in Steiner v. Mitchell, 350 U.S. 247 (1956), that "activities, such as the donning and doffing of specialized protective gear, that are 'performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed." Relying upon its prior decision in Steiner, the Court found that because the donning and doffing of safety gear that is "integral and indispensable" to the employees' work is a "principal activity," the continuous workday rule requires that the time spent walking to and from the floor as well as time spent waiting to doff -- i.e., time walking after the beginning of the employee's first principal activities and before the end of the employee's last principal activity -- is covered by the FLSA and the employee must be compensated for that time. However, the Court held that time spent waiting to don is not 'integral and indispensable," but a "preliminary" activity, and does not advance the time that the workday begins. Thus, the time spent waiting to put on protective gear is not compensable under the FLSA. However, the Court carefully noted that its analysis would be different if the employer required the employees to report at a particular time to begin donning, but no protective gear was available until after some time had elapsed. Under those circumstances, which did not exist in the case before it, the Court suggested that any waiting time may then be covered under the FLSA.

    Therefore, employers must now compensate those employees who are required to don and doff protective gear for the time spent donning and doffing, as well as the time spent walking to and from the locker room and the production floor, and any time spent waiting to remove the protective gear, but not time spent waiting to don the gear.