November 21, 2005

In a recent decision, the Supreme Court held that walking time spent after donning required protective gear is compensable under the Fair Labor Standards Act (“FLSA”). 

Some background of the existing statutes and Supreme Court cases is necessary to understand fully the impact of the Supreme Court’s recent decision in IBP, Inc. v. Alvarez.  Under the FLSA, a compensable workday is defined to be “the period between the commencement and completion” of the “principal activity or activities” of the job. Under the Portal-to-Portal Act, Congress established that walking on the employer’s premises to and from the actual area where work is performed is not part of the compensable workday, and neither are those activities that are “preliminary or postliminary” to the performance of the “principal activity.”  (The Portal-to-Portal Act is the statute that, for over fifty years, has established that employers do not have to compensate employees for walking time.)  According to an earlier Supreme Court decision, Steiner v. Mitchell (1956), time spent donning and doffing specialized protective gear for the performance of job duties is compensable under the FLSA when the protective gear is “an integral and indispensable part of the principal activities” of that employee.

In deciding the IBP case, the Supreme Court found that its conclusion that walking time spent after donning required protective gear is compensable working time was a necessary extension of existing law.  According to its own earlier decision, compensation for time spent donning and doffing specialized protective gear is compensable as a “principal activity.”  Additionally, under the FLSA, an employee is entitled to compensation for a “continuous workday,” which has always been understood to be that time “between the commencement and completion” of the “principal activity or activities” of the job.  Therefore, once the employee engages in a “principal activity,” such as donning specialized protective gear, the employee’s “continuous workday” has commenced, and the employee is entitled to compensation from that point on, which necessarily includes walking to the work station from the dressing station.

The key rules that emerge from IBP, Inc. v. Alvarez are:

• For those employees who are paid for the time spent donning their specialized protective gear that is required for performance of their jobs, employers are also required to pay those employees for the time spent walking from the station where the specialized protective gear is donned to where the actual job duties are performed.

• However, the actual time that employees spend waiting to don their specialized protective gear is not compensable time, on the grounds that it is preliminary to the performance of any “principal activity.”  The Supreme Court’s decision strongly suggests, however, that if an employer requires the employees to arrive at a particular time in order to begin waiting or to don the protective gear which then requires some waiting, then that waiting time is compensable.