In an opinion issued on November 8, 2005 in IBF Inc. v. Alvarez, the United States Supreme Court resolved a conflict between two Circuit Courts on the issue of what constitutes "compensable time" under the Fair Labor Standards Act of 1938 ("FLSA").  In IBF Inc. v. Alvarez, the Supreme Court agreed to hear two cases to settle a division among federal appeals courts about "walking and waiting time issues" under the text of the FLSA and under regulations issued by the Labor Department interpreting the Act.  The essential issue in IBF required the Court to consider when a workday actually begins, and, therefore, when an employer must start paying its workers.

In IBF Inc., the Supreme Court addressed time issues that arise after an employee has donned protective clothing or safety gear in the employer's place of work, and the time spent walking to and from such donning of clothes.  The decision also addressed such important wage/hour concepts such as "first principal activity" and the "continuous work day".  In IBF a unanimous Court ruled that under the FLSA, employees who put on protective gear before starting work activities must be paid for the time spent walking from the changing area to the production area.

Enacted in 1938, the FLSA sets minimum standards for paying hourly workers.  The principal congressional purpose in enacting this Act was to protect all covered workers from substandard wages and oppressive working hours – "labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being or workers."  As such, the FLSA was designed to give specific minimum protections to individual workers and to ensure that employees covered by the Act receive a "fair day's pay for a fair day's work" and are protected from "the evil of ‘overwork' as well as ‘underpay'".  Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739 (1981).  Although it provides minimum standards for paying workers, the FLSA does not define the terms "work," "workday" and "work week".  As a result, the Supreme Court has spent decades determining and refining what "work" is under the Act and when the workday or work week begins and ends.

The Court addressed the issue of what constitutes work for purposes of compensation in 1946 in Anderson et al. v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).  The issue raised in Anderson was whether employees were entitled to compensation for the time between when they clocked in and reached their places of work and prepared for productive work.

In Anderson, the Supreme Court noted that under the FLSA, the statutory workweek includes all time during which an employee is required to be on the employer's premises – either on duty or at a prescribed workplace – as well as the time spent in those activities.  Anderson at 691.  It followed that the time spent in walking to work on the employer's premises, after the time clocks were punched, involved "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business."  Id.  In Anderson, this also included such preliminary activities as putting on aprons and overalls, removing shirts, taping or greasing arms, preparing the equipment for productive work, turning on switches for lights and machinery and assembling and sharpening tools.     

The Supreme Court held that work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract.  Anderson at 692.  However, the Supreme Court in Anderson did limit the time that was compensable to the minimum time necessarily spent in walking at an ordinary rate along the most direct route. And, the Court did not preclude the application of a "de minimus" rule: the employer was not required to compensate employees for time spent getting to a work station where the walking time was such as to be negligible, or for insignificant amounts of time spent in preliminary activities.  Under the FLSA an employee would be required to be compensated only when the employee was required to give up a substantial measure of his time and effort.  Id.   

Problems with what constituted "work" and a "workday" continued, however, and in 1947 Congress passed the Portal-to-Portal Act in an effort to define those problematic terms.  The Portal-to-Portal Act amended the FLSA to exclude from mandatory compensation certain activities – such as traveling to work – that occur before or after an employee's primary job duties. 

The Portal-to Portal Act was designed primarily to meet an "existing emergency" resulting from claims, which if allowed under Anderson, would have created unexpected immense and retroactive liabilities. Under the Portal-to Portal Act of 1947, Congress excepted from FLSA coverage walking on the employer's premises to and from the location of the employee's "principal activity or activities," and activities that are "preliminary or postliminary" to the principal activity or activities.  However, the Portal-to-Portal Act did not otherwise change the Supreme Court's descriptions of "work" and "workweek" and the Act did not define "workday." 

Eight years after enactment of the Portal-to-Portal Act, the United States Supreme Court explained 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 .S. 247, 256 (1956).  The precise question in Steiner was whether workers in a battery plant were required to be paid as a part of their "principal" activities for the time incident to changing clothes as the beginning of their shift and showering at the end, where the employees were required to make extensive use of very dangerous caustic and toxic materials.  Based on the facts in Steiner, the Supreme Court concluded that activities performed either before or after the regular work shift, on or off the production line, were compensable under the portal-to-portal provisions of the FLSA if those activities are an integral and indispensable part of the principal activities for which covered workers are employed and not specifically excluded by Section 4(a) (1) of the Portal-to-Portal Act.  Steiner at 256.

The focus of the two cases the U.S. Supreme Court recently considered in IBF was on the time that meat processors spent walking after they suited up, but before they reached the production floor.  The Supreme Court concluded that under previous Supreme Court decisions and Department of Labor regulations, workers must be paid under a "continuous workday" theory; this theory does not include stopping and starting the time clock each time an employee moves from one work area to another.  The Supreme Court heard the two cases to resolve a division among federal appeals courts regarding the "walking and waiting" time concerns under the FLSA and Labor Department regulations interpreting the FLSA and the Portal-to-Portal Act.  In its ruling in these consolidated cases, the Supreme Court held that any activity that is "integral and indispensable" to a "principal activity" is itself a "principal activity" under the Portal-to-Portal Act, and, that during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the Portal-to-Portal Act and is instead covered by the FLSA.  IBF. 

In the first of the two cases considered by the Court, workers filed a class action suit seeking compensation for time spent donning and doffing required protective gear and walking to and from the locker rooms to the production floor of a meat processing facility owned by IBF, Inc.  In that case, the Supreme Court held that post donning and predoffing walking time (time the employees spent walking between changing and production areas) was compensable under the FLSA.  Alvarez v. IBF, Inc., No. 03-1238, 2005 WL 2979670 (U.S. Nov. 8, 2005).  The Court determined that "[b]ecause the donning and doffing gear that is integral and indispensable to employees' work is a principal activity under the FLSA, the continuous workday rule mandates that the time the IBF workers spend walking to and from the production floor after donning and before doffing, as well as the time spent waiting to doff, are not affected by the Portal-to-Portal Act, and are instead covered by the FLSA."  The Court distinguished the walking in IBF from the walking in Anderson (which was not compensable), because the relevant walking in IBF occurred after the workday began and before it ended (in Anderson the relevant walking preceded the employees' principal activity).  However, the Supreme Court also ruled that the employees would not be compensated for time spent waiting to don the first piece of gear that marked the beginning of the continuous workday, because that activity – which was two steps removed from the productive activity on the assembly line – qualified as a "preliminary" activity.  The Court explained its ruling by stating that the fact that certain preshift activities are necessary for employees to engage in does not mean that those preshift activities are "integral and indispensable" to a "principal activity" under Steiner. 

In the second case considered by the Supreme Court in its November 8, 2005 ruling, the Justices considered the claims of workers employed by a poultry processing plant         operated by Barber Foods, Inc.  The employees argued that the time spent by the employees walking to the production floor after donning required safety gear and the time spent walking away from the production floor to the area where they removed such gear was compensable time.  The Supreme Court agreed with this argument.  However, the Supreme Court rejected the workers' argument that the time spent standing in line waiting for safety equipment and protective gear when they first arrived at work was also compensable.  In rejecting this argument, the Supreme Court explained that the time spent waiting to don the safety gear was time that elapsed before the principal activity of donning integral and indispensable gear – as such it  was not a principal activity under the Portal-to-Portal Act.  Accordingly, the Portal-to-Portal Act excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday.   

So, as a result of the Supreme Court's most recent ruling, what is the implication for officers who do not have to report to roll call but travel to get to their assignments, or for officers who don and remove safety and protective gear, or who drive their squad cars to and from work?  As with so many situations in the field of labor law, there are no easy, quick or blanket answers, and each case may have to be considered on its own facts and merits.

What does seem clear is that any activity engaged in by an officer that is integral and indispensable to an officer's  principal activity is itself an integral activity under the Portal-to-Portal Act and should be considered compensable time.  And, under the "continuous workday" theory, any travel time that occurs after the beginning of the officer's first principal activity and before the end of the officer's last principal activity should be excluded from the provisions of the Portal-to-Portal Act and should be compensable under the FLSA.

by: Erika Raskopf, Attorney, Illinois FOP Labor Council