The following article appeared in the April 2006 issue of CPER Magazine.  The California Public Employee Relations Program provides nonpartisan information to those involved in employer-employee relations in the public sector. For more information, visit http://cper.berkeley.edu.

FROM DON TO DOFF SHALT THOU PAY^[1]

I.      Introduction

Many employees are required to wear safety and/or sanitary gear to properly perform their jobs.  Such employees may spend several minutes at the beginning of each work shift waiting in line to retrieve such gear, putting it on, and then walking to their work stations before finally beginning their assigned tasks.  Then, at the conclusion of each workday, those same employees spend additional minutes walking back to their changing areas, removing their required gear and returning it to the employer’s designated storage facility. 

The U.S. Supreme Court recently addressed the extent to which such employee activities, essential to an employee’s ability to perform the tasks for which he or she was hired, are compensable under the Fair Labor Standards Act (“FLSA” or “the Act,” 29 U.S.C. § 201 et seq.).^[2]  The Court ultimately ruled that, in the context of the food-processing workers at issue, activities that occur between donning and doffing—which, respectively, mark the start and end of each workday—are compensable, while any activities that take place before donning or after doffing are not compensable under the FLSA.  An employee’s daily wait to receive the gear he or she must don for work, is not compensable but the actual donning of equipment, the walk from the donning area to the workstation, the walk back from the workstation to the doffing area at the end of the shift, as well as the actual doffing and returning of the gear are all deemed compensable work.

While the decision provides employers and employees with important guidance in determining which hours spent by employees on an employer’s premises are compensable, the decision does not break much new ground.  The Court essentially reiterates the old “whistle to whistle” concept, which states that all hours spent on behalf of an employer “within” the workday must be compensated, while preliminary and postliminary activities that occur before the start and after the conclusion of the workday are not compensable.  The decision will likely have little impact in the public sector, because the overwhelming majority of public sector employees are not required to be at the work site prior to the scheduled start of their work shift.  

This article sets out the logic of the Court’s decision against the backdrop of previous FLSA jurisprudence, considers the significance and limitations of the decision, and concludes with some practical suggestions for employers in the public sector that might be affected by the ruling.

II.        A Fair Day’s Pay For A Fair Day’s Work

In 1938, Congress enacted the FLSA to promote the “health, efficiency, and general well-being of workers” and to ensure that employees receive “a fair day’s pay for a fair day’s work.”^[3]  Among other things, the Act sought to combat the twin “evils of ‘overwork’ and ‘underpay’” by imposing on employers a costly premium on any work performed by employees beyond a maximum number of weekly hours (usually forty hours in a seven day workweek).^[4]  Through the mechanism of mandatory overtime pay, employers are strongly discouraged from having employees work more than the statutorily designated maximum number of weekly hours.

 Employers who wish to avoid paying their workers at the premium overtime rate must carefully monitor the actual number of hours worked by their employees.  The consequences, both legal and financial, of an employer’s failure to properly record, and compensate, an employee for the actual hours he or she works in a given workweek can be significant.

A.        Early Cases

Although the FLSA clearly required employers to pay their employees at a premium rate if they work beyond a certain number of hours in a workweek, the statute defined neither “work” nor “workweek.”  As a result, questions arose almost immediately regarding the compensability of particular employee activities associated with, but not directly constituting, the principal work activities for which employees were hired. 

The U.S. Supreme Court initially defined these terms broadly.  For instance, the Court held that time spent traveling from iron ore mine portals to underground working areas was compensable.^[5]  The Court found that “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” was included in the definition of “the statutory workweek.”^[6]

B.        The Portal-to-Portal Act

The Congress, disapproving of these broad FLSA interpretations by the Court, in 1947 amended the FLSA by passing the Portal-to-Portal Act (“Portal Act,” 29 U.S.C. § 252 et seq.)  Among other things, the Portal Act clarified that travel, riding and walking time to and from work, and other similar preliminary and postliminary activities performed before and after the workday, are not compensable unless made compensable by contract, custom, or practice.  Section 4 narrows the FLSA’s coverage by specifically excepting walking on the employer’s premises to and from the actual place where the employee performs his or her principal activities, and activities that are “preliminary or postliminary” to that principal activity.^[7]

C.        The Continuous Work Day Rule

In 1947, the Department of Labor promulgated an interpretative regulation of the Portal Act, which concluded that the Portal Act did not affect the computation of hours worked “within” the workday.  The Portal Act excluded activities from the FLSA workday as “preliminary” or “postliminary” only if they took place “prior to the time on any particular workday at which the employee commences, or subsequent to the time on any particular workday at which he ceases, the principal activity or activities which he is employed to perform.”^[8]  The Department of Labor also adopted the continuous workday rule, which defines the “workday” as the continuous “period between the commencement and completion on the same workday of an employee’s principal activity or activities.”^[9]

D.        Steiner v. Mitchell

The continuous workday rule established that employee activities performed after the employee’s first, but before the employee’s last, “principal activity or activities” were compensable under the FLSA.  However, it did not define what would constitute the first or last “principal activity” of a day.

In 1956, the Supreme Court decided a case involving battery plant workers who were “compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide.”^[10]  The Court, emphasizing the important health and safety risks associated with the production of batteries, held that that these employee activities (but not “changing clothes and showering under normal conditions”) were compensable under the FLSA.^[11]  The Court held that the term “principal activity or activities” contained in Section 4 of the Portal Act “embraces all activities which are an ‘integral and indispensable part of the principal activities,’ including showering and changing clothes under the unique health and safety hazards of work in a battery plant.”^[12]  

Thus, according to Steiner, activities such as donning and doffing of specialized protective gear “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 and are not specifically excluded by Section 4(a)(1) [of the Portal Act].”^[13]

III.       IBP, Inc. v. Alvarez:  The Workday Is From Don To Doff

The Supreme Court’s recent IBP, Inc. v. Alvarez decision resolved a conflict between the Ninth and First Circuit Court of Appeals regarding the compensability under the FLSA of certain activities preceding and following the donning and doffing of certain employee gear deemed “integral and indispensable” to the employees’ principal activities.  

The decision’s consolidated review of IBP, Inc. v. Alvarez^[14] and Tum v. Barber Foods, Inc.,^[15] clarifies whether activities such as waiting to don or doff protective gear, or walking to and from the changing area to the employee’s workstation should be considered “an integral and indispensable part” of an employee’s principal work activities under Steiner (i.e., compensable under the FLSA) or whether such activities must be considered “preliminary” or “postliminary” under the Portal Act (i.e., not compensable under the FLSA).

Ultimately, the Supreme Court agreed with the Court of Appeals for the Ninth Circuit (and against the First Circuit) that the time food-processing workers spend walking between their donning/doffing areas and their work stations at the start and end of every workday is compensable under the FLSA.  However, the Supreme Court also held that the time such employees spend waiting to put on the protective gear at the start of each workday is not covered by the FLSA. 

A.         The Decisions of the Ninth and First Circuit Courts of Appeals

1.         IPB, Inc. v. Alvarez (9th Cir.)

IBP is a large producer of fresh beef, port, and related products.  At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division.  All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots.  Many must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglas armguards, and special gloves.  IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear.^[16]

Production workers’ pay is based on the time spent cutting and bagging meat.  Pay begins with the first piece of meat and ends with the last piece of meat.  IBP pays for four minutes of clothes-changing time.  IBP employees filed a class action to recover compensation for pre- and post-production work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts.  The District Court found that, for instance, processing division knife users engaged in 12 to 14 minutes pre- and post-production work, including 3.3-4.4 minutes of walking time.^[17]

The District Court held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such gear.  Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.  The court did not grant recovery for ordinary clothes changing and washing, or for the donning and doffing of hard hats, ear plugs, safety glasses, boots or hairnets.^[18]

The Ninth Circuit Court of Appeals agreed with the District Court that the burdensome donning and doffing of elaborate protective gear ought to be distinguished from the time spent donning and doffing non-unique gear such as hardhats and safety goggles.  While the Court of Appeals did not categorically exclude the donning and doffing of non-unique gear from being “principal activities” as defined by the Portal Act, in the context of this case, the time employees spent donning and doffing nonunique protective gear was de minimis as a matter of law.^[19]  In other words, the Court of Appeals left open the possibility that the donning and doffing of non-unique gear could, in a particular case, be compensable (if such donning and doffing took a significant amount of time), even if here such activity was not a “principal activity” because it was simply too insignificant to record as a separate activity.

As noted above, the Supreme Court eventually upheld the Ninth Circuit Court of Appeals’ decision that the time these meat-processing workers spent walking between the changing and production areas at the beginning and conclusion of each workday was compensable under the FLSA.

2.         Tum v. Barber Foods, Inc. (1st Cir.)

Barber Foods operates a poultry processing plant in Portland, Maine, that employs about 300 production workers.  These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing.  They are paid by the hour from the time they punch in to computerized time clocks located at the entrances to the production floor.^[20]

The District Court for Maine held that “the donning and doffing of clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs’ work [and therefore are] not excluded from compensation under the Portal-to-Portal Act as preliminary or postliminary activities.”^[21]  However, the Court rejected the notion that employees must be compensated for their time waiting to obtain their gear because such time “could [not] reasonably be construed to be an integral part of employees’ work activities any more than walking to the cage from which hairnets and earplugs are dispensed.”  Thus, the District Court declared that Barber was “entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee’s workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment.” ^[22]

The employees appealed the District Court’s exclusion from FLSA compensation of the time they spent walking to the production floor after donning required safety gear and the time they spent walking from the production floor to the area where they doff such gear.  However, the Court of Appeals rejected this argument, concluding that such walking time was a species of “preliminary” and “postliminary” activity excluded from FLSA coverage by section 4(a) of the Portal Act.^[23]

The Court of Appeals also rejected the argument that waiting time associated with the donning and doffing of clothes was compensable.  The Court held that such waiting time constituted a “preliminary or postliminary activity,” and was thus excluded from FLSA coverage by the Portal Act.^[24]

B.         Walking Time

The Supreme Court explicitly addressed the question, raised by both the First and Ninth Circuit Court of Appeals cases, of whether post-donning and pre-doffing walking between an employee’s changing area and his or her workstation was compensable under the FLSA.  In so doing, it had to resolve a potentially thorny conflict between two well-established wage and hour rules.

As noted above, in the Portal Act, Congress explicitly excluded from FLSA coverage all employee time spent “walking, riding or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform.”^[25]  Moreover, the Portal Act also excludes all “activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.”^[26]  The Portal Act would thus seem to exclude post-donning walking as an activity “preliminary” to the principal activity and pre-doffing walking as an activity “postliminary” to the principal activity.

On the other hand, the Supreme Court in Steiner half a century ago concluded that the donning of essential safety gear is compensable under the FLSA, even if it takes place prior to the start of an employee’s shift, because it is an “integral and indispensable part of the principal activities for which covered workmen are employed.”^[27]  Thus, under Steiner, anything that is an “integral and indispensable part” of an employee’s “principal activities” is itself a “principal activity” and must be compensated as if it is part of the workday.    

The Alvarez Court reconciles the Portal Act’s exclusion of “preliminary” or “postliminary” activities with Steiner’s inclusion of “integral and indispensable” activities that occur before an employee’s principal tasks, by framing its opinion around the continuous work day rule adopted by the Department of Labor in its interpretative regulations of the Portal Act.  According to this rule, any employee activity performed between the first and last principal activity of the day, is deemed a part of the workday, and must be compensated under the FLSA.  The key, then, is to identify the first and last principal activity of the day.

In most situations the workday is defined by the beginning and ending of an employee’s primary productive activity.  However, the Alvarez Court points to Department of Labor regulations which describe the workday as “roughly the period ‘from whistle to whistle.’”^[28]  The workday need not necessarily begin precisely with the first productive activity.  Indeed, relying on Steiner, the Court notes that anything “integral and indispensable” to an employee’s principal activity is, itself considered a “principal activity.”^[29] 

In Steiner, the Supreme Court had ruled that donning and doffing that is “integral and indispensable” to an employee’s principal activity must itself be considered such “principal activities.”^[30]  For purposes of deciding what is “preliminary” or “postliminary” under the Portal Act, therefore, the locker room where the food-processing workers donned and doffed their special safety gear—and not the food-processing assembly line—represented the “actual place of performance” of the principal activity for which the employees were hired. 

Indeed, the Alvarez Court declared that donning and doffing constituted the first and last principal activities of the day.  As such, the compensable workday begins in the locker room when the employees don the required gear, and ends again in the locker room when they doff the gear.  Any employee activity occurring between donning (i.e., the start of the workday), and doffing (i.e., the end the workday), such as walking to the workstation after donning, and walking back to the locker room to doff essential work gear, is compensable under the FLSA.  Such walking is not “preliminary” or “postliminary” activities but constitutes principal activities that are part of the workday.

The Portal Act’s exclusion of the “walking … to and from the actual place of performance” excludes from the FLSA an employee’s travel time to the place of donning in the morning but does not exclude walking from that place to another area within the plant immediately after the workday has commenced.  Such post-donning walking takes place within the workday and is akin to the compensable walking between two different positions on an assembly line inside a production facility.^[31]

In short, the Alvarez Court held that any activity “integral and indispensable” to a “principal activity” is itself a “principal activity” under section 4(a) or the Portal Act, and that during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity (e.g., donning) and before the end of the employee’s last principal activity (e.g., doffing) is excluded from the scope of that provision, and as a result is covered by the FLSA.^[32]

C.        Waiting Time

The Court also applied the continuous work day rule to the question of the compensability of time waiting to don and doff required safety gear.  Again, any waiting that occurred “within” the workday, that is between the first and last principal activity of the day, was compensable.  Therefore, the Court found that waiting in line to receive protective gear prior to the actual work shift was excluded from the FLSA as “preliminary” but that time spent waiting to doff that gear at the conclusion of the work shift was compensable (since the work day did not conclude until doffing was complete).^[33]

The Court, without undertaking a thorough analysis, determined that the workday begins at don and ends at doff, rejecting the employees’ contention that their workday actually begins with a wait for the gear they were required to don.  The employees in Barber argued in vein that waiting to receive essential gear ought to be considered part of the workday because this activity was “integral and indispensable” to donning which, in turn, was deemed a “principal activity” because it was “integral and indispensable” to the principal productive activity for which the employees were hired.  However, the Court balked at deeming something a “principal activity” that was two steps removed from the productive activity on the assembly line.^[34]

Moreover, the Court flatly rejected the employees’ argument that waiting was factually “integral and indispensable” to their job, noting that while donning of protective gear was “always essential if the worker is to do his job,” waiting is not always necessary for every situation or employee, and thus cannot be considered “integral and indispensable” in the same sense as donning can.^[35]  The Court explained that 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 under Steiner.  For example, walking from a time clock near the factory gate to a workstation is certainly necessary for employees to begin their work, but Congress, in enacting the Portal Act, clearly intended to exclude such walking time from FLSA coverage.^[36]

The Court did not state that waiting to don gear or begin a work shift could never be compensable.  The Court acknowledged that in certain situations, waiting for work could be an integral part of the employee’s principal activities.  The Court specifically cited a Department of Labor regulation that indicates that waiting time is compensable when an employer requires its workers to report to the changing area at a specific time, and the employees are there at that hour ready and willing to work but for some reason beyond the employees’ control there is no gear or work available until some time has elapsed.^[37]  However, in the cases at issue, the Court determined that the situation was more akin to time employees must spend waiting to check in or waiting to receive their paychecks.^[38]  Such waiting is generally characterized as “preliminary” activity under the Portal Act, which is not compensable unless the parties have an agreement or there is a custom and practice in place.^[39]

IV.       Open Questions

While the Court’s continuous work day rule provides some clarification as to which collateral types of issues must be treated as compensable principal activities, it by no means will end litigation on whether particular activities, including walking and waiting, are compensable under the FLSA under particular circumstances.  The determination of what is or is not “integral and indispensable” to a principal work activity remains fact specific.  Nor does the continuous workday rule explain when inactivity truly constitutes a non-compensable work break.   

The Alvarez decision does not make absolutely clear whether the Court considers the donning and doffing of nonunique protective gear as integral and indispensable to employee’s principal activities.  The opinion throughout is careful to speak of donning and doffing of special protective gear (e.g., chain-metal aprons, etc.) in analyzing what may be considered an “integral and indispensable” activity.  It avoids a close examination of the specific types of gear that must be donned and doffed under the Steiner case in order for it to be deemed a principal activity.  The implication seems to be that the donning and doffing of non-unique, general clothing gear is not “integral and indispensable” to an employee’s principal activities.  Donning and doffing such clothing, and walking and waiting to do so, may therefore not be covered as work time under the FLSA.  However, the Court did not explicitly say so, nor is it necessarily clear what makes gear sufficiently “unique” to be within FLSA coverage.  Therefore, because the Court’s decision focused exclusively on protective gear, the extent of the ruling remains unclear as to other uniforms or equipment that many public employees may be required to don. 

On the other hand, the Court did not explicitly reject the Ninth Circuit Court of Appeals’ suggestion that while the donning and doffing of non-unique protective gear could potentially be deemed a “principal activity,” in many cases (such as the one at issue in the Alvarez) the facts would show that donning and doffing standard types of gear or clothing (hardhats, gloves, hairnets, safety glasses, earplugs, etc.) simply was not cumbersome or time-consuming enough to merit consideration; time to don such apparel would be de minimis, or of no significance, under the law.   

The Ninth Circuit has explained that three factors are relevant to whether otherwise compensable working time should be considered de minimis and therefore not compensable:  (1) the practical and administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis.^[40] 

In fact, the Alvarez opinion leaves the future of the “de minimis” rule under the FLSA open to question.  Before this decision, if a task was de minimis, the employee did not have to be compensated since it was so small that it was difficult to quantify.^[41]  However, as recording technology gets proficient enough to accurately record such time without undue administrative burden, the de minimis rule may become less relevant.^[42]  This may be especially true because in Alvarez, the Court left open the possibility that small time segments could be aggregated to survive a de minimis finding.  In other words, while an activity, such as donning and post-donning walking, may be de minimis if looked at separately, such activities may become compensable if considered in the aggregate.  This could prove costly for employers.

The continuous work day rule, at least rhetorically and at least for most traditional employees who work a traditional work shift, offers a clear demarcation for the start and end of a work day.  However, the Court did not signal how it might address less traditional work shifts, or how far the start and end of a workday may be extended by the performance of various “integral and indispensable activities.”  For instance, with the advance of technology, employers increasingly expect their employees to check their email and voice mail or daily assignments, or report in to supervisors, before such employees even leave their own house; they may then call in on their cell phone while driving to work and/or pick up tools or supplies while on their way to work.  It would seem that such “checking in” or similar activities, would constitute the “first principal activity” of the day under the Alvarez continuous day rule.  This, in turn, would mean that these tasks as well as all subsequent time, including an employee’s commute, is compensable under the FLSA.   However, this would expose employees to exactly the type of open-ended and potentially expansive liability that the Portal Act was designed to avoid by excluding travel time.  It is not yet clear how this Court would avoid such an result, and whether the Court would be willing to revisit Steiner and its “integral and indispensable” rule.

V.        Impact On The Public Sector

The potential financial and legal ramifications of the Alvarez decision are significant when considered in the aggregate.  Indeed, an employer’s routine failure to properly record and compensate an employee’s seemingly trifling waiting and walking time may, when the number of affected employees and the length of time involved are taken into consideration, constitute a massive potential liability under the FLSA.  However, while the reach of the decision extends beyond the meat and poultry industries specifically addressed by the Court, it is unlikely that Alvarez will have a significant effect on public sector employers. 

The impact of the decision will be felt most directly by employers who require their employees to don unique, protective gear because of internal policies or state or federal regulations; such employers will likely have to compensate their employees for the time they spend on donning and doffing such special gear at the beginning and conclusion of each day.  The decision will also affect employers who require their employees to “clock in” and then walk to their work stations; these employers will likely have to compensate these employees for their walking time. 

With very few exceptions, public sector employees are not required to be at the work site prior to the scheduled start of their work shift to perform mandatory pre-shift activities.  Public sector employees by in large perform all their activities during their scheduled work shift, not before.  Therefore, the Supreme Court’s ruling that certain pre-shift activities, such as the donning of protective gear, may constitute the beginning of the compensated work day will have little impact on most public sector employers.

Nevertheless, public sector employers must, on a case-by-case basis determine whether they have any employees that do perform certain pre-shift or post-shift activities that are integral and indispensable to their primary work activity.  Under the Alvarez ruling, such activities are not only considered principal work activities that must be compensated under the FLSA but also mark the beginning and end of the continuous work day.  Any employee activity, including waiting or walking, that occurs within this “continuous work day” has to be compensated.

In its comprehensive set of interpretive bulletins, the Department of Labor states that “[w]ork not requested but suffered or permitted is work time.”^[43]  Thus, if an employer allows an employee to perform activities integral and indispensable to his or her main activity before the start or after the conclusion of the employee’s scheduled work shift, such time will be considered “hours worked,” even if the employer is not specifically aware of the work being performed, and even if the work is carried out before or after normal working hours.^[44]

While most public sector employees do not perform integral and indispensable activities prior to their official shift, certain public employees may be required to put on special gear before they are able to perform the principal tasks for which they are hired. 

Fire protection employees are required to don special gear to fight fires.  However, because of the unique nature of their 24-hour shifts, throughout which fire fighters remain on call, this activity will usually take place while the employees are already on duty.  Thus, unless a fire department specifically requires its fire protection employees to put on their gear before their 24-hour shift begins, this issue will generally not arise.

Police officers may similarly be required to don a special uniform and firearm prior to their shift.  Although the law is not entirely clear on this, the history of FLSA jurisprudence as well as the language and logic of the Supreme Court’s Alvarez decision suggests that the Supreme Court would be unlikely to find the donning of non-unique gear, such as a basic police uniform, to be sufficiently integral and indispensable to a police officers’ principal duties to be compensable under the FLSA.  Instead, such donning would likely be deemed “preliminary” to the principal work activity of the officer.  Moreover, the donning of a police officer uniform would likely be deemed de minimis by law.

Swat Team members may be required to don special protective body armor before their scheduled shift begins.  Here too the law is not clear.  However, a close reading of Alvarez suggests that the Supreme Court might consider the donning of such specialized gear, just like the specialized gear of food-processing workers, to be sufficiently integral and indispensable to the Swat Team member’s principal duties to be compensable under the FLSA.

Certain public works employees, solid and liquid waste employees, special district employees (Mosquito abatement specialists, etc.), and other public employees may also be required to don elaborate protective gear to perform their principal duties.  Employers will have to determine in each case whether these employees put on their gear prior to their scheduled shift and, if so, whether donning this gear is sufficiently integral and indispensable to their principal work to be compensable under the FLSA.

The Court specifically emphasized that its FLSA inclusion of walking time once the workday has already begun is designed to cover only relatively small segments of time (generally consuming less time than the donning and doffing activities that precede and follow the walking).^[45]  The Court expressed its desire to avoid a rule that favored open-ended and potentially expansive liability (for instance, by allowing workers’ commuting time to be compensable).  The Court therefore specifically reaffirmed that employers are only responsible for activities encompassed by “the workday,” and are not responsible for “preliminary” time an employee spends reaching the work area from the proverbial factory gate.

VI.       Some Suggestions

In light of this decision, employers face various practical and logistical challenges.  They should review employee work activities to identify employees that don specialized protective gear integral and indispensable to a principal work activity prior to beginning their main daily tasks.  The employer should then implement procedures to ensure compliance.  Supervisors should be trained in the proper recording of such time.  Employees should also be notified through written policies of the employer’s wage and hour procedures, including the methods for addressing any employee complaints regarding miscalculation of hours.

Employers must be careful to properly record all the activities employees perform that are a principal activity or integral and indispensable to it.  Given the uncertainty over the continued applicability of the de minimis rule, employees may wish to review whether activities previously considered de minimis would remain legally insignificant even if aggregated with associated activities, such as waiting or walking. 

To make sure that they capture all the time from the first principal activity of the day, employers may wish to move their time clocks from the production floor to the locker room.  Alternatively, employers who currently require employees to don special gear at a location far removed from the place where the employees actual perform their principal functions, may consider whether they can find a closer location to hand out and require their employees to change into such gear.  Employers should make sure that employees wait until just before the start of the work shift to don their gear.  In this way, the walking and waiting time can be reduced to a minimum. 

Similarly, to avoid having to compensate employees for waiting idly in line to doff their gear, employers should make sure they have a system, including adequate space and locker facilities, that allows employees to quickly and efficiently doff their gear at the end of the day.

VII.     Conclusion

In IBP, Inc. v. Alvarez, the first Supreme Court opinion issued under the stewardship of new Chief Justice John G. Roberts, Jr., the Court ruled that a food-processing employee’s day begins with donning and ends with doffing of special protective gear.  Adopting the continuous work day rule, the Court held that for these employees, activities performed by them before donning or after doffing this gear takes place outside the covered work day and is therefore not compensable under the FLSA.  In contrast, any employee activity that takes place between the employee’s don and doff is a part of the continuous work day, and is compensable under the FLSA. 

While the decision provides important guidance to employers and guidance regarding the compensability of hours spent by employees on an employer’s premises, the decision will have little impact on public sector employers.  Employers must make sure to record and compensate the time spent by employees walking between their changing and workstations and any time they are forced to wait to doff their gear after they conclude their principal work.  However, employers still do not need to compensate their employees for time waiting to receive their gear (unless the employer specifically requires them to be there at a certain time to receive this gear).