Supreme Court Clarifies Whether Certain Walking and Waiting Time is Compensable

Supreme Court Clarifies Whether Certain Walking and Waiting Time is Compensable

December 2005
By Kristine M. Moore The Supreme Court clarified several wage and hour issues in a unanimous ruling on November 8, 2005, in consolidated cases, IBP, Inc v. Alvarez and Tum v. Barber Foods. The cases involve issues related to employees who must wear specialized protective gear as a job requirement. Fair Labor Standards Act ("FLSA") regulations state that changing into and out of such gear is compensable, where if changing clothes is "merely a convenience to the employee," and not directly related to the employee's principal activities, that time is not compensable. This rule was not challenged at the Supreme Court level. Rather, the Supreme Court reviewed a narrower issue: whether walking and waiting time associated only with required protective gear is compensable. With respect to "walking time," the employees argued to the Court that they were not, but should have been, paid for the time spent walking to their work stations after changing into protective gear (and back to the locker room after their shift). The federal appellate courts had contrary opinions on this issue. The Supreme Court agreed with the employees, holding that changing into required specialized protective gear was an activity so integral to performing the employee's job that it was akin to participating in the actual principal activity – not a mere preliminary or postliminary activity that is generally considered non-compensable under the FLSA. Thus, the Court held, where walking to a work station occurs after the principal activities (workday) begin, or before they end, it is compensable. Where walking to a work station precedes or follows any principal activities, it is not compensable. The Court reasoned that the walking time at issue was comparable to walking to two different positions on an assembly line, rather than pre-work or post-work walking. The "waiting time" issue was whether time spent waiting in line to acquire protective clothing was compensable. The lower court had held that this time was not compensable and the Supreme Court agreed. Here, the employees argued that standing in line to obtain their protective gear was necessary to perform their job and thus, should be compensable. The Court disagreed, holding "the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are 'integral and indispensable' to a 'principal activity.'" The Supreme Court carefully distinguished this case from that in which an employer required its workers to report to a changing area at a specific time, only to discover no protective gear was ready for him or her. Here, the Court found, the time spent waiting to change into protective gear was "two steps removed from the productive activity on the assembly line." Thus, this time was properly placed in the category of non-compensable preliminary and postliminary activities.