Petition for Writ of Certiorari — IBP, Inc. v. Alvarez

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FILED |

031238 FEB 26 2004

IN THE

Supreme Court of the Anited States

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, individually and as a class representative;

RANULFO GUTIERREZ, individually and as a class

representative; PEDRO HERNANDEZ, individually and as a

class representative; MARIA MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI ©

WILLIAM A. Norris CARTER G. PHILLIPS*

JOEL M. COHN JOSEPH R. GUERRA

REX S. HEINKE REBECCA K. WOOD

L. RACHEL HELYAR SIDLEY AUSTIN BROWN

AKIN GUMP STRAUSS & Woop LLP

HAUER & FELD LLP 1501 K Street, NW

2029 Century Park East Washington, DC 20005

Suite 2400 (202) 736-8000

Los Angeles, CA 90067

(310) 229-1000

Counsel for Petitioner

February 26, 2004 * Counsel of Record

TA ETE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

ST Se NOE

QUESTIONS PRESENTED

Section 4(a) of the Portal-to-Portal Act of 1947 provides an

exception to an employer’s obligation to pay wages under the

Fair Labor Standards Act of 1938 (“FLSA”), for time an

employee spends “walking . . . to and from the actual place of

performance of the principal activity or activities which such

employee is employed to perform” and for “activities which

are preliminary or postliminary to said principal activity.” 29

U.S.C. § 254(a). Section 3(0) of the FLSA expressly

excludes from payment “any time spent in changing

clothes... at the beginning or end of each workday which

was excluded from measured working time during the week

involved by the express terms of or by custom or practice

under a bona fide collective-bargaining agreement.” /d.

§ 203(0).

The questions presented are:

(1) Whether walking that occurs between compensable

clothes-changing time and the time employees arrive at or

depart from their actual work stations constitutes non-

compensable “walking ... to and from the actual place of

performance of the principal activity” within the meaning of

Section 4(a).

(2) Whether, after United States v. Mead, 533 U.S. 218

(2001), deference is due the Department of Labor’s

interpretation of the term “clothes” in Section 3(0), when that

interpretation is embodied in an opinion letter issued by the

Administrator of the Department’s Wage and Hour Division,

who is charged with administering and enforcing the FLSA,

when Congress has provided that third parties may rely on

such opinion letters, and when the opinion letter itself restores

the agency’s prior position?

(i)

STATEMENT REQUIRED BY RULES 14.1 AND 29.6

Pursuant to Supreme Court Rule 14.1, petitioner states that

all parties to the proceeding in the court whose judgment is

sought to be reviewed are included in the caption. Petitioner

notes that IBP, inc., is currently known as Tyson Fresh Meats,

Inc.

Pursuant to Supreme Court Rule 29.6, petitioner states that

IBP, inc., currently known as Tyson Fresh Meats, Inc., is a

subsidiary of Tyson Foods, Inc. (NYSE: TSN).

tents ee

TABLE OF CONTENTS

QUESTIONS PRESENTED.............ccccccrcossocscoscssresserseees

STATEMENT REQUIRED BY RULES 14.1 AND

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TABLE OF AUTHORITIES .............cccccccccecceeeceeeeeeeneees

ee IEP cxcncesccnceccesccsscssesesscesvensessescsee seseeneennes

IEEE IIE aciisretnenesnsncnessesccsccecsessesecseessessceescesessocoee

RELEVANT STATUTORY PROVISIONS................0..

STATEMENT OF THE CASE.................scccsccssocsssseseseees

A. The Fair Labor Standards Act, the Portal-to-

Portal Act, and the Department of Labor ...........

B. Factual Background ............00..cscccsscccsscessesesseosees

C. The Decision of the Court of Appeals................

REASONS FOR GRANTING THE PETITION..............

1. THERE IS AN ACKNOWLEDGED AND

INTOLERABLE CONFLICT AMONG THE

COURTS OF APPEALS REGARDING THE

COMPENSABILITY OF “WALKING TIME”

UNDER THE PORTAL ACT ..........ccccccccccceeeeeeeees

A. There Is An Acknowledged Conflict Among

The Courts Of Appeals About When Workers

Are Entitled To “Walking Time” Compen-

sation Under The Portal Act .............ccccccceceeeeees

B. Whether Employers Are Required To Com-

pensate Employees For “Walking Time” Is

Recurring And Important...................cc00ccceeeeeees

(iti)

TABLE OF CONTENTS—continued

C. The Ninth Circuit Erred In Holding That The

“Walking Time” Here Was Compensable..........

ll. THIS COURT SHOULD GRANT THE

PETITION TO PROVIDE MUCH NEEDED

GUIDANCE CONCERNING THE DEFER-

ENCE DUE LESS FORMAL AGENCY INTER-

PRETATIONS OF AMBIGUOUS STATUTORY

A. There Is Significant Confusion In The Courts

Of Appeals About The Extent Of Deference

Due “Less Formal” Department Of Labor

Statutory Interpretations ...............c.cccccccccccseeeeeeee

B. The Degree Of Agency Deference Due “Less

Formal” Agency Interpretations Is Recurring

CO iccssceeresiinititiniienininatiatasitclestatieiaitaeasineai

C. The Ninth Circuit Erred In Utterly Disregard-

ing The Agency’s Interpretation.........................

SO aaa variasntnensnecenamneenatetintemiabaciasintiiiiiieestiiiatds

Page

TABLE OF AUTHORITIES

CASES Page

Alaska Dep't of Envtl. Conservation v. EPA, —

U.S. —, 124 S. Ct. 983 (2004)... cee eeeeeeenees 20

Anderson v. Mt. Clemens Pottery Co., 328 U.S.

FE ectrnsemectenmnintmeneemmeemnen 4

Arcadi v. Nestle Food Corp., 38 F.3d 672 (2d Cir.

FE nseeeseremesssnssemnmmannennnmneanenemmenemen 9

Barnhart v. Walton, 535 U.S. 212 (2002)....... 10, 20, 24

Bejil v. Ethicon, Inc., 269 F.3d 477 (Sth Cir.

Sie csserenannssenennememnemmemenemmmnennensmnnee 8, 18

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (19B4).......ccccccceceeeeeeees 3, 19,23, 24

Christensen v. Harris County, 529 U.S. 576

ee ncsntenccsnensnensneamnnnpumemmnenanngenesnmacansion 19

De Asencio v. Tyson Foods, Inc., 342 F.3d 301

oe 16

Herman v. Fabri-Centers of Am., Inc., 308 F.3d _

580 (6th Cir. 2002), cert. denied, 537 U.S. 1245

Houston Police Officers’ Union v. City of

Houston, Tex., 330 F.3d 298 (Sth Cir.), cert.

denied, 124 S. Ct. 300 (2003) ........ccccccceceeeeeeeees 21,22

Krzalaic v. Republic Title Co., 314 F.3d 875 (7th

Cir. 2002), cert. denied, 123 S. Ct. 2641

Matz v. Household Int'l Tax Reduction Inv. Plan,

265 F.3d 572 (7th Cir. 2001), cert. denied, 535

a 21

Nardone v. General Motors, Inc., 207 F. Supp.

ee 18

NationsBank of N.C., N.A. v. Variable Annuity

Life Ins. Co., 513 U.S. 251 (1995)... ccccccceeeeedee 22

Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.

TABLE OF AUTHORITIES—continued

Page

Saunders v. John Morrell & Co., No. C88-4143,

1991 WL 529542 (N.D. lowa Dec. 24, 1991)..... 18

Skidmore v. Swift & Co., 323 U.S. 134 (1944)....... 3, 23

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735

ication teaninin ddan iaicininc alae 24, 26

Steiner v. Mitchell, 350 U.S. 247 (1956)............ 4,6, 11,

13, 15

Tennessee Coal, lron & R.R. Co. v. Muscoda

Local No. 123, 321 U.S. 590 (1944) 000. 4

Tum v. Barber Foods, Inc., 331 F.3d 1 (1st Cir.

2003), pet. for reh'g and reh'g en bance filed,

Nos. 02-1679, -1739 (Ist Cir. June 17, 2003),

briefing ordered, Nos. 02-1679, -1739 (ist Cir.

June 26, 2003 and Aug. 18, 2003)............ 3, 12, 14, 17

Turner v. City of Phila., 96 F. Supp. 2d 460, aff'd,

262 F.3d 222 (3d Cir. 2001) .............cccccecccceccceeeee 9

United States v. Mead, 533 U.S. 218 (2001)......... 10, 18,

19, 23, 24

STATUTES AND REGULATIONS

FEE Cee ee RR eT EE 3

TEITTTTITIT I cesonteetiebetainintitmatittilasintaiasipeetteadianeaiall Ss

EEE 2, 5, 23

EEE nee Sone eeR S aee 3

STI stisatietaiiiaatiesiaiceaiaicialasidtetiaeamahiac tiie 3

Es an ee 10

Ee aera ee 4

Ee aT 2,4, 15

I siieaitrtai cin tarncasiainidinseseniahcetiidiinlatniiads 2, 5,7

8 ee eee 2, 6, 23

a iitartaiecerinsinittaiininnianiiniinmiadiae 2, 6, 23

eee 2,14

I TTT chiar tiiaai laminated, 2,14

§ 790.17(d) ..ecceene Laieciiiennensdabieaiin 2, 6

cll

Vil

TABLE OF AUTHORITIES—continued

29 C.F.R. § 1910. 1030(b)........cccccccceeeeeeeeereeeenenennens

LEGISLATIVE HISTORY

93 Cong. Rec. 2082 (1947) .......ccccccecceeeeneeeeennnennees

0, ~

SCHOLARLY AUTHORITIES

Robert A. Anthony, Keeping Chevron Pure, 5

Green Bag 371 (Summer 2002) ...............::eee00e

Kenneth Culp Davis & Richard J. Pierce, Jr.,

Administrative Law Treatise (4th ed. 2003

+i. >

BAIRD. ) 32.e00ecececcecccecssesensesesocsvsscsscsscesssssecssonecsonssess 21, 25

William S. Jordan, United States v. Mead:

Complicating the Delegation Dance, 3\ Envtl.

L. Rep. 11425 (2001).............c.c.ececeesersererrerseesseees

Thomas W. Merrill & Kristin E. Hickman,

Chevron's Domain, 89 Geo. L.J. 833 (2001).......

Thomas W. Merrill & Kathryn Tongue Watts,

Agency Rules With The Force Of Law: The

Original Convention, 116 Harv. L. Rev. 467

Joseph E. Tilson et al., Litigating Lawsuits Under

the FLSA—The Fastest Growing Area of

Employment Litigation, 697 PLI/Lit. 649 (Oct.-

Dare, FID cccscscccscancesenssnsctnnesssemnensmnesmsenesesnsensnenees

IN THE

Supreme Court of the United States

No. 03-

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, individually and as a class representative;

RANULFO GUTIERREZ, individualiy and as a class

representative; PEDRO HERNANDEZ, individually and as a

class representative; MARIA MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Oe eh ee “~~ 2

PETITION FOR A WRIT OF CERTIORARI

Petitioner IBP, inc. respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The order of the court of appeals denying IBP’s petition for

rehearing and suggestion of rehearing en banc was entered on

November 28, 2003, is unreported, and is reprinted in the

Appendix to this Petition (“Pet. App.”) at 83a-84a. The

underlying opinion of the court of appeals was entered on

August 5, 2003, is reported at 339 F.3d 894 (9th Cir. 2003),

and is reprinted in the Pet. App. at la-34a. The findings of

fact and conclusions of law of the United States District Court

for the Eastern District of Washington were entered on

September 14, 2001, are unreported, and are repriitec in the

Pet. App. at 35a-82a.,

JURISDICTION

The opinion of the court of appeals was entered on August

5, 2003, and the order of the court of appeals denying IBP’s

petition for rehearing and Suggestion of rehearing en banc

was entered on November 28, 2003. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

This petition involves the following provisions of the Fair

Labor Standards Act of 1938 and the Portal-to-Portal Act of

1947: 29 U.S.C. §§ 203(0), 204(a), 251, 254(a), 259: see also

29 C.F.R. §§ 790.1(b), 790.6(b), 790.7(e)-(g), 790.17(d),

1910.1030(b). The pertinent text of these provisions is set

forth in the Pet. App. at 85a-93a.

STATEMENT OF THE CASE

As the Secretary of Labor explained in her amicus brief to

the Ninth Circuit below, this case presents fundamental

questions concerning the compensability of certain pre- and

post-shift activities under the Fair Labor Standards Act of

nat (“FLSA”) and the Portal-to-Portal Act of 1947 (“Portal

ct”).

First, the Ninth Circuit ruled that Section 4(a) of the Portal

Act, which excludes from compensa.ion the time employees

spend “walking ... to and from” their actual work stations,

does not apply to such walking if it occurs between

compensable clothes-changing time and the actual work

Station. In so ruling, the Ninth Circuit created a square

conflict with the First and Tenth C ircuits, which reached

precisely the opposite conclusion on this important issue. See

Pet. App. 19a (acknowledging contrary interpretation of the

First Circuit). Second, the Ninth Circuit ruled that certain

ds Le

attire worn in the meat packing industry does not constitute

“clothes” within the meaning of Section 3(0) of the FLSA,

which excludes from compensation “any time spent changing

clothes . . . at the beginning or end of each workday” in

unionized facilities in certain circumstances. In so ruling, the

Ninth Circuit ignored a contrary decision of the Fifth Circuit,

and refused to afford either Chevron or even Skidmore

deference to an opinion letter in which the Department of

Labor concluded that the items of attire in question are

“clothes” under Section 3(e)- See Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984);

Skidmore v. Swift & Co., 323 U.S. 134 (1944). The decision

below thus adds to the widespread confusion in the lower

courts concerning (a) when agency pronouncements that are

not the product of notice-and-comment rulemaking or formal

agency adjudications are legally binding and (b) the degree of

deference that attaches to non-binding agency pronounce-

ments. Accordingly, this case provides the Court an

opportunity to supply much needed guidance on these critical

and frequently recurring questions of administrative law.

A. The Fair Labor Standards Act, the Portal-to-

Portal Act, and the Department of Labor

Some familiarity with the FLSA and the Portal Act, as well

as the Department of Labor’s role in administering those

statutes, is necessary to place the questions presented in their

proper context. In 1938, Congress enacted the FLSA to

establish, inter alia, employment compensation standards.

See 29 U.S.C. §§ 202, 206, 207. That Act requires employers

to “record, credit, and compensate employees for all of the

time which the employer requires or permits employees to

work.” Tum v. Barber Foods, Inc., 331 F.3d 1, 5 (1st Cir.

2003) (citing 29 U.S.C. § 201 ef seq.), pet. for reh’g and

reh’g en banc filed, Nos. 02-1679, -1739 (Ist Cir. June 17,

2003), briefing ordered, Nos. 02-1679, -1739 (Ist Cir. June

26, 2003 and Aug. 18, 2003). Work is generally defined as

“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.” Tennessee Coal, Iron & R.R. Co. v. Muscoda

Local No. 123, 321 U.S. 590, 598 (1944). Employers who

violate the FLSA’s requirements may face liability and

liquidated damages. See 29 U.S.C. § 216(b).

In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

(1946), this Court adopted a broad interpretation of the

compensation due employees with respect to certain collateral

we —work activities. In particular, the Court held that pottery plant

employees were entitled to compensation for the “30

seconds” to “8 minutes” of walking time from the plant

entrance to their work stations as well as for “various

preliminary duties, such as putting on aprons and overalls,

removing shirts, taping or greasing their arms, [and] putting

on finger cots.” /d. at 682-83, 690. In the wake of Anderson,

there was a “vast flood of litigation” involving “vast alleged

liability.’ 93 Cong. Rec. 2087, 2089 (1947); id. at 2082

(noting the “immensity of the [litigation] problem’”’).

Congress responded to Anderson and the litigation it

spawned by enacting the Portal Act. As this Court has

recognized, the Portal Act “was designed primarily to meet an

‘existing emergency’ resulting from claims which, if allowed

in accordance with Anderson . .. would have created ‘wholly

unexpected liabilities, immense in amount and retroactive in

operation.”” Steiner v. Mitchell, 350 U.S. 247, 253 (1956)

(citation omitted) (quoting 29 U.S.C. § 251(a)). Congress

identified a litany of harms that can attend uncertainty and

overbreadth in the area of employee compensation for

“walking time,” including: financial ruin for employers,

gross inequity of competitive conditions, and windfall

payments to employees. 29 U.S.C. §25I(a). Congress

enacted the Portal Act (1) to “relieve” these pressures, (2) to

“protect the right of collective bargaining,” and (3) “to define

and limit the jurisdiction of the courts.” /d. § 251(b).

This case raises issues that implicate provisions of the

FLSA and the Portal Act. First, Section 4 of the Portal Act

excludes certain “walking time” from the FLSA’s

compensation requirements. Section 4 provides that:

no employer shall be subject to liability or punishment

under the [FLSA] . .. on account of the failure of such

employer to pay ... for...

(1) 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, and

(2) 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 empioyee commences, or

subsequent to the time on any particular workday at

which he ceases, such principal activity or activities.

Id. § 254(a).

Second, in 1949, Congress added Section 3(0) to the FLSA,

which provides:

[iJn determining . . . the hours for which an employee is

employed, there shall be excluded any time spent in

changing clothes ... at the beginning or end of each

workday which was excluded from measured working

time during the week involved by the express terms of or

by custom or practice under a bona fide collective-

bargaining agreement applicable to the particular

employee.

Id. § 203(0) (emphasis added).

Congress also created the Department’s Wage and Hour

Division. The Administrator of the Division, who is

“appointed by the President, by and with the advice and

consent of the Senate,” id. § 204(a), is charged with the

“administration and enforcement” of the FLSA, 29 C.F.R.

§ 790. 1(b). Under the FLSA, “any written administrative

regulation, order, ruling,” approval, or interpretation” by the

Administrator may be relied on by third parties as a good-

faith defense against FLSA liability. 29 U.S.C. § 259.

B. Factual Background

|. IBP, inc., currently known as Tyson Fresh Meats, Inc.

(referred to herein as “IBP”), is the world’s largest supplier of

premium beef and pork, and related products. See Pet. App.

2a. Headquartered in Dakota Dunes, South Dakota, IBP

employs approximately 41,000 people. Respondents are

unionized production workers at IBP’s Pasco, Washington

meat processing facility.

Production workers are *equired to wear various items,

which they must don prior to arriving at their work stations.

These items include a sanitary outer garment, a plastic

hardhat, a hair net, ear plugs, a face shield, goggles, gloves,

liquid-repelling sleeves, apron and leggings, safety boots or

shoes, and a weight belt. See Pet. App. 3a-4a & n.2, 39a-40a.

Moreover, “knife users” may wear additional items such as

mesh metal aprons, leggings, vests, sleeves, and gloves, as

well as plexiglass arm guards and Kevlar gloves. See id. at 4a

n.2, 39a-40a. Although, for a time, collective-bargaining

agreements governing IBP’s employees expressly included

compensation for “clothes changing” time at the beginning

and end of the shift, the agreements negotiated in 1982, 1986,

and 1992, as well as the current agreement, exclude “clothes

‘In its 1949 FLSA amendments, Congress also ratified any then-

effective “‘order, regulation, or interpretation of the Administrator,”

unless inconsistent with the FLSA, until modified by the Administrator.

Steiner v. Mitchell, 350 U.S. 247, 255 n.8 (1956) (quoting 29 U.S.C. § 208

note).

>“The term ‘ruling’ commonly refers to an interpretation made by an

agency ‘as a consequence of individual requests for rulings upon

particular questions,”” i.e., “[o}pinion letters.” 29 C.F.R. § 790.17(d).

ee ee ee

aba

changing time.” /d. at 4a n.3, 37a-38a. Employees must be at

their work station on the production line at the time the first

product arrives at their station. See id. at 3a.

2. In 1999, respondents filed a class action suit against

IBP in the United States District Court for the Eastern District

of Washington charging that certain of IBP’s compensation

practices violated the Portal Act and FLSA. _ First,

respondents sought pay for time spent walking to their Pasco

plant work stations after donning their work attire before the

beginning of the work shifts, and time spent walking from

their work stations before doffing that attire after the end of

the work shifts. See 29 U.S.C. § 254(a). Second, respondents

sought pay for the time spent actually donning and doffing

their attire. Petitioner defended its practices on the grounds

that Sections 4 and 3(0) excluded the time spent on both of

these activities from the FLSA’s compensation requirements.”

After.a bench trial, the District Court ruled for respondents on

the walking time component of this petition and also

determined that donning and doffing certain of the attire

detailed above was compensable. See Pet. App. 35a-82a.

On appeal to the Ninth Circuit, the Secretary of Labor filed

an amicus brief. On the Section 4 issue, the Secretary argued

that time spent walking from the locker to the work station

and back is compensable as being all in a day’s work. With

respect to the threshold question whether the attire worn by

meat-packing employees constitutes “clothes” within the

meaning of Section 3(0)’s exclusion, the Secretary explained

that the Administrator had issued an Opinion Letter to a third

party interpreting Section 3(0) to apply to certain protective

clothing worn by meatpacking employees like the plaintiffs in

this case. In particular, the Opinion Letter supported IBP’s

position and rejected the conclusion that “[S]ection 3(0) does

‘In addition, respondents’ complaint, and the opinions below,

addressed several other FLSA and State law issues that are not the subject

of this petition.

not apply to the putting on [or] taking off . . . of the protective

safety equipment typically worn in the meat packing industry,

such as mesh aprons, plastic belly guards, mesh sleeves or

plastic arm guards, wrist wraps, mesh gloves, rubber gloves,

polar sleeves, rubber boots, shin guards, and weight belts.”

Id. at 94a.

In her amicus brief, the Secretary explained that the 2002

Opinion Letter overrode a contrary interpretation adopted for

the first time in 1997. In the 2002 Opinion Letter, the

Administrator reasoned that the 1997 interpretation had

“never previously been put forward by the Administrator” and

was ut of keeping with the historical treatment of Section

3(0) by both “a number of regional and district officials” as

well as “the Office of the Solicitor.” Pet. App. 94a. The

1997 opinion, moreover, “confined its reasoning to a single

sentence,” simply stating without explanation the legal

conclusion that “‘clothes’ has a ‘plain meaning’ which

excludes: (i) ‘protective’ articles that (ii) may be ‘cumber-

some in nature’ and (111) are “worn over ... apparel.’” /d. at

98a (ellipses in original). Based upon a “careful review of the

interpretation of [S]ection 3(0),” including “a reexamination

of the statute and legislative history,” a review of “the history

and purpose” of the provision, and consideration of an OSHA

regulation that includes protective gear as a subset of clothing

(see 29 C.F.R. § 1910.1030(b)), the Administrator restored

the position to which the agency had long adhered prior to the

1997 opinion. Pet App. 96a-100a. This interpretation, the

Administrator explained, reaffirms that a “function” of

Section 3(0) is “to allow companies and unions to agree to

treat as non-compensable clothes-changing activities that

otherwise would be compensable under the Portal Act.” /d. at

97a-98a."

* Of course, such agreements can be embodied not only in a collective

bargaining agreement, but in a custom or practice that can arise in a

variety of ways under a collective bargaining agreement. See, e.g., Bejil v.

Ethicon, Inc., 269 F.3d 477, 480 (Sth Cir. 2001) (per curiam) (bargaining

C. The Decision of the Court of Appeals

The United States Court of Appeals for the Ninth Circuit

affirmed the District Court in relevant part. First, as to the

Section 4 “walking time” issue, the Ninth Circuit agreed with

the District Court that the workday includes “‘the reasonable

walking time from the locker to work station and back . . . for

employees required to don and doff compensable personal

protective equipment.” Pet. App. 18a (ellipses in original).

Acknowledging that the First Circuit had reached a contrary

conclusion, the Ninth Circuit reasoned that “[t]here is nothing

in the statute or regulations that would lead to the conclusion

that a workday may be commenced, then stopped while the

employee is walking to his station, then recommenced when

the walking is done.” /d. at 19a; id. at 19a n.10 (“But see Tum

v. Barber Foods, Inc., 331 F.3d | (ist Cir. 2003)").

Second, as to the Section 3(0) clothes-changing exclusion,

29 U.S.C. § 203(0), the Ninth Circuit affirmed the District

Court’s interpretation that Section 3(0) did not exclude the

“time spent putting on personal protective equipment” from

compensation requirements. Pet. App. 17a. Notwithstanding

the careful consideration reflected in the 2002 Opinion Letter,

the Ninth Circuit rejected the Administrator's interpretation

as a “new, inconsistent interpretation” and, without further

analysis, accorded the letter no deference. See id. at 17a n.9.

Treating Section 3(0)’s exclusion as an exemption, the

panel relied heavily upon the general notion that exemptions

are not permitted “‘except [in contexts] plainly and

unmistakably within the[] [given exemption’s] terms and

spirit.” Pet. App. 16a (quoting K/em v. County of Santa

Clara, 208 F.3d 1085, 1089 (9th Cir. 2000)) (alterations and

history); Arcadi v. Nestle Food Corp., 38 F.3d 672, 674-75 (2d Cir. 1994)

(union-employer “understanding™); Turner v. City of Phila., 96 F. Supp.

2d 460, 463 (E.D. Pa. 2000) (“acquiescence without formal negotiation”),

aff'd, 262 F.3d 222 (3d Cir. 2001).

emphases in original).° The panel concluded that there was

no such “plain and clear § 3(0) fit” for respondents’ protective

gear. /d. Finally, the court observed that specialized

protective gear is “different in kind from typical clothing” in

the sense that the “admonition to wear warm clothing, for

example, does not usually conjure up images of donning a

bullet-proof vest or an environmens, spacesuit.” /d. The

Ninth Circuit thus concluded that “from both a regulatory and

common sense perspective, ‘changing clothes’ means

something different from ‘donning required specialized

personal protective equipment” and IBP was therefore not

entitled to Section 3(0)’s exclusion. /d. at |6a-17a.

REASONS FOR GRANTING THE PETITION

This case presents two fundamental and recurring questions

of federal law. First, at least three courts of appeals have

issued conflicting decisions on the scope of the Portal Act’s

“walking time” provision. Review by this Court is thus

plainly warranted to provide uniformity on an issue that has

profound implications for the economy as a whole.

Second, there is widespread confusion in the courts of

appeals concerning (a) the circumstances in which agency

pronouncements that are not the product of notice-and-

comment rulemaking or formal adjudications—such as the

Department of Labor Opinion Letter at issue in this case—are

entitled to Chevron deference, and (b) what deference, if any,

attaches to non-binding agency pronouncements, particularly

where, as here, the agency overturns a recent, and aberrant,

interpretation. Indeed, the lower courts have expressed

considerable frustration in attempting to apply this Court's

decisions in United States v. Mead, 533 U.S. 218 (2001), and

Barnhart v. Walton, 535 U.S. 212 (2002), to less formal

* Section 3(0) is contained in the definitions section of the FLSA. By

contrast, exemptions from the Act's overtime and minimum wage

requirements are set forth in Section 13 of the FLSA. 29 U.S.C. § 213.

agency pronouncements. This case thus affords the Court an

opportunity to provide much needed guidance on these

critical and frequently recurring questions of administrative

law.

I. THERE IS AN ACKNOWLEDGED AND INTOL-

ERABLE CONFLICT AMONG THE COURTS OF

APPEALS REGARDING THE COMPENSABIL-

ITY OF “WALKING TIME” UNDER THE

PORTAL ACT.

There is an acknowledged and irreconcilable conflict

among the courts of appeals on the fundamental issue whether

employees are entitled to compensation under the Portal Act

for “walking time” between arguably compensable pre- and

post-shift clothes changing and the actual work station. This

Court has long recognized its “importan{t]” role in

interpreting the Portal Act, especially where, as here, there is

“a conflict between the circuits on the subject.” Steiner v.

Mitchell, 350 U.S. 247, 248 (1956). Because, as Congress

itself expressly found, a breathtaking array of harms can

attend uncertainty and overbreadth concerning the

compensability of “walking time,” the Court should decide

this important yet unresolved issue of statutory interpretation.

A. There Is An Acknowledged Conflict Among The

Courts Of Appeals About When Workers Are

Entitled To “Walking Time” Compensation

Under The Portal Act.

The decision below creates a conflict over whether Section

4(a) requires employers to compensate employees for all

walking time that occurs between an employee's actual work

station and pre- and post-shift activities, such as clothes

changing, which might be deemed compensable if they are

found to be “integral and indispensable” to the employee's

principal work activity. The Ninth Circuit answered that

question in the affirmative. It reasoned that, because the

donning of protective attire is an integral and indispensable

preliminary work activity, it is therefore a “principal [work]

activity,” such that “[aJll activities performed thereafter—

such as ‘walking’—thus occur during the ‘principal’ workday

and are compensable.” Pet. App. 18a (quoting Steiner, 350

U.S. at 252-53).

By contrast, as the Ninth Circuit acknowledged, the First

Circuit squarely rejected the very reasoning the Ninth Circuit

adopted. The First Circuit concluded that, even if clothes

donning and doffing is an integral part of the employees’

principal activity, walking that occurs after such donning (but

prior to arrival at the work station) and before such doffing

(after departure from the work station) is not compensable.

Tum v. Barber Foods, Inc., 331 F.3d 1, 6 (1st Cir. 2003). The

Tenth Circuit has likewise held that even where the donning

and doffing of personal protective equipment at a similar IBP

facility “was a compensable work activity,” employees were

not entitled to compensation for post-donning and pre-doffing

walking time. Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th

Cir. 1994).

More specifically, the courts of appeals disagree about

whether the right to compensation can start and stop during

the day. On the one hand, the Ninth Circuit found “nothing in

the statute or regulations that would lead to the conclusion

that a workday may be commenced, then stopped while the

employee is walking to his station, then recommenced when

the walking is done.” Pet. App. 19a. By contrast, as the

Tenth Circuit described it, even compensable clothes

changing is not the “first and last principal activit[y] of the

workday which would commence and toll the running of the

timeclock” such that all walking time between clothes

changing and the work station is compensable. Reich, 38

F.3d at 1127. The First Circuit implicitly adopted the Tenth

Circuit’s reasoning by ruling that, even where clothes

changing is integral to the employee's principal activity,

walking time to and from the work station may be excluded.

Tum, 331 F.3d at 6.

At the heart of this disagreement is the Ninth Circuit's

misunderstanding of this Court's decision in Steiner. There,

the Court held that:

activities 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 [1] an

integral and indispensable part of the principal activities

for which the covered workmen are employed and [2]

are not specifically excluded by Section 4(a)(1).

350 U.S. at 256 (emphasis added). The “integral and

indispensable” activities at issue in Steiner were “changing

clothes at the beginning of the shift and showering at the

end.” /d. at 248. Because there was no claim in Steiner that

walking to and from the actual work station was itself an

“integral and indispensable” activity, there was no need to

exclude such walking time from the category of compensable

“indispensable” activities. Accordingly, Steiner's reference

to activities “not specifically excluded by Section 4(a)(1)” can

only be understood as a clarification that an “integral and

indispensable”—and therefore compensable—activity does

not render compensable all walking that occurs between that

“integral and indispensable” activity and the work station.

Indeed, the Department of Labor has made this very point.

In provisions directly addressing preliminary and

postliminary activities, the Department has appended the

following footnote:

Washing up after work, like the changing of clothes,

may in certain situations be so directly related to the

specific work the employee is employed to perform that

it would be regarded as an integral part of the

employee’s ‘principal activity’. See colloquy between

Senators Cooper and McGrath, 93 Cong. Rec. 2297-

2298. This does not necessarily mean, however, that

travel between the washroom or clothes-changing place

and the actual place of performance of the specific work

the employee is employed to perform, would be excluded

from the type of travel to which 4(a)[(1)] refers.

29 C.F.R. § 790.7(g) n.49 (citation omitted; emphasis and

alteration added). Like this Court’s decision in Steiner—

which also relied extensively on colloquies between Senators

McGrath and Cooper—the Department’s adoption of this

explanation makes clear that a compensable “integral and

indispensable” activity does not render compensable all time

spent walking between that activity and the actual work

station. See Tum, 331 F.3d at 6 (relying on this provision to

reach a result contrary to that of the court below).°

Accordingly, there is a well-developed, clear, and

irreconcilable conflict among the courts of appeals about the

applicability of Section 4 to walking time that occurs between

the work station and compensable clothes-changing activity.

That conflict plainly warrants this Court's review.

* This conclusion is further buttressed by the use of the phrase “actual

place of performance” in Section 4(a)(1), which “emphasizes that the

ordinary travel at the beginning and end of the workday . . . includes the

employee’s travel on the employer's premises until he reaches his

workbench or other place where he commences the performance of the

principal activity.” 29 C.F.R. § 790.7(e); see id § 790.7(f) (walking

“between the plant gate and the employee's lathe, workbench or other

actual place of performance of his principal activity” generally is

exempted under Section 4(a)). In addition, where, as here, “an employee

is required to report at the actual place of performance of his principal

activity at a certain specific time, his ‘workday’ commences at the time he

reports there for work in accordance with the employer's requirement.”

Id. § 790.6(b). Here, employees must report to their work stations on the

production line at the time the first meat arrives at their own stations for

processing. See Pet. App. 3a-4a.

B. Whether Employers Are Required To Compen-

sate Employees For “Walking Time” Is Recur-

ring And Important.

The conflict created by the courts of appeals presents a core

and recurring issue with profound implications for the

Nation’s economy as a whole. Accordingly, it should be

answered definitively now.

This Court has long recognized “the importance of the

interpretation of the portal-to-portal provisions in_ the

administration of the Fair Labor Standards Act.” Steiner, 350

U.S. at 248. Indeed, in enacting the Portal Act, Congress

found that uncertainty and overbreadth in the interpretation of

the FLSA causes numerous significant harms to the national

economy. As the text of the statute itself recites, these harms

include: (1)the “financial ruin of many employers” and

“serious[] impair[ment of] the capital resources of many

others”; (2) “seriously impair[ing]” “the credit of many

employers”; (3) “extended and continuous uncertainty on the

part of industry”; (4)“gross inequity of competitive

conditions between employers and between industries”;

(5) “windfall payments” to employees for “activities

performed by them without any expectation of reward beyond

that included in their agreed rates of pay”; (6) “interfere[nce]

with” “voluntary collective bargaining” and the creation of

“industrial disputes between employees and employers and

between employees and employees”; (7) courts nationwide

“be[ing] burdened with excessive and needless litigation”;

(8) the Public Treasury “be[ing] deprived of large sums of

revenues”; (9)the cost of goods and services to the

government “be[ing] unreasonably increased,” including

“serious[]” increases in the “cost of war contracts”; and

(10) “serious and adverse effects upon the revenues of

Federal, State, and local governments.” 29 U.S.C. § 251(a).

The Ninth Circuit’s broad reading of Section 4 and the

existing uncertainty in the courts of appeals gives rise to

many, if not all, of the same concerns.

Commentators have noted, for example “the dramatic

increase in the use of FLSA class actions,” such as the lawsuit

here. Joseph E. Tilson et al., Litigating Lawsuits Under The

FLSA— The Fastest Growing Area Of Employment Litigation,

697 PLI/Lit. 649, 657 (Oct.-Nov. 2003). This litigation

explosion threatens to tax judicial resources and threatens

employers with massive and unexpected liabilities—two of

the very evils the Portal Act was meant to prevent.

“Although, in the typical case, each individual's claim .. . is

generally small, when plaintiffs join together . . . the resulting

damages (and attorneys’ fees) can be immense.” /d. at 655.

Indeed, “(t]he aggregation of claims, particularly as class

actions, profoundly affects the substantive rights of the parties

to [a] litigation. Notably, aggregation affects the dynamics

for discovery, trial, negotiation and settlement, and can bring

hydraulic pressure to bear on defendants. The more

aggregation, the greater the effect on the litigation.” De

Asencio v. Tyson Foods, Inc., 342 F.3d 301, 310 (3d Cir.

2003) (discussing both FLSA opt-in and Rule 23 opt-out

state-law classes in clothes-changing case).

Similarly, the split of authority among the circuits creates

unfair disparities in competitive conditions that can harm not

only employers, but also workers in particular regions of the

country. This very case creates the anomalous result that

employees at the same company may be entitled to different

“walking time” compensation depending upon the circuit in

which their work facility is located. Compare Pet. App. 17a-

19a (“walking time” compensable for workers at IBP facility

in the Ninth Circuit), and Reich, 38 F.3d at 1127 (“‘walk{ing]

time’ not compensable for workers at IBP facility in the

Tenth Circuit), This disparity creates incentives for

companies to relocate jobs to States outside the Ninth Circuit,

and thus threatens to impose job losses and gains not based on

market considerations but on the non-uniform application of

federal law. Indeed, many other industries that involve work

requiring use of protective gear ave affected by these

ere ee ee ee ee ee ee oe

anomalous results, including, for example, the poultry-

processing, pharmaceutical, medical equipment, oil and gas

processing, biotechnology, and other manufacturing

industries. In sum, the proper interpretation of Section 4(a)

should be answered definitively for the benefit of all

employers and employees nationwide.

C. The Ninth Circuit Erred In Holding That The

“Walking Time” Here Was Compensable.

Finally, the Court should grant review to correct the Ninth

Circuit’s erroneous interpretation of the Portal Act. Not only

does the decision below misread this Court’s decision in

Steiner and ignore Labor Department guidance, but also it is

not faithful to the purpose of the Portal Act, which was to

minimize mandatory compensation for pre- and _ post-shift

walking time. Indeed, as the First Circuit has recognized,

“Congress did not intend for most types of walking to be

compensable.” Tum, 331 F.3d at 6; see also id. (“By

stretching the traditional understanding of primary activity to

cover donning and doffing in very limited circumstances,

Congress was not creating an avenue to circumvent” Section

4(a)).

Moreover, as the First Circuit points out, the rule adopted

by the Ninth Circuit below leads to “nonsensical” results. /d.

In some facilities, for example, employees walk between

several gear distribution locations before arriving at their

work station. Under the Ninth Circuit’s decision, employers

can seek to avoid or minimize compensable walking time “by

placing all of the items at one location instead of at a few

locations” or by placing changing locations closer to work

stations. /d. These decisions would not be driven by any

legitimate interest in efficiency, but rather by an artificial

effort to avoid liability for walking time that Congress never

intended to make compensable.

For all of these reasons, the Court should grant the petition

to correct the Ninth Circuit’s error, to answer this important

and recurring question of federal law, and to end the

irreconcilable conflict among the courts of appeals.

il. THIS COURT SHOULD GRANT THE PETITION

TO PROVIDE MUCH NEEDED GUIDANCE

CONCERNING THE DEFERENCE DUE LESS

FORMAL AGENCY INTERPRETATIONS OF

AMBIGUOUS STATUTORY TERMS.

The Ninth Circuit’s decision also creates a conflict among

the circuits concerning the proper interpretation of the term

“clothes” in Section 3(0). The Fifth Circuit rejected as

“nonsensical” the claim that “sanitary garments ... are not

‘clothes’ under § 203(0).” Bejil v. Ethicon, Inc., 269 F.3d

477, 480 n.3 (Sth Cir. 2001) (per curiam); see also Saunders

v. John Morrell & Co., No. C88-4143, 1991 WL 529542. at

*1, *4 (N.D. lowa Dec. 24, 1991) (Section 203(0) applies to

exclude time spent by meatpacking employees in changing

into and out of “steel-mesh gloves, synthetic-mesh gloves,

goggles, helmets, arm guards, belly guards, knife and cut

resistant gloves, knife guards, steel-toed shoes, rubber boots,

rubber gloves, rubber aprons, and steel-mesh aprons”);

Nardone v. General Motors, Inc., 207 F. Supp. 336, 338, 340

(D.N.J. 1962) (time spent by metal finishers in changing into

and out of “coveralls, gloves, aprons, goggles and hoods”

excluded from compensation by Section 203(0)).

The Ninth Circuit, by contrast, concluded that certain attire

worn in the meat-packing industry falls outside the ambit of

the term “clothes.” Pet. App. 16a-17a & n.9. Although the

agency charged with administering and enforcing the FLSA

has issued an Opinion Letter that interprets this very term to

encompass the attire at issue in this case, the Ninth Circuit

flatly dismissed the agency’s interpretation as a “new” and

“inconsistent” view that was entitled to no deference. /d. at

17a n.9. This decision thus provides an opportunity to resolve

the decisional conflict concerning Section 3(0) and for the

Court to clear up significant confusion in the circuits in the

wake of United States v. Mead, 533 U.S. 218 (2001), about

. —

the appropriate degree of deference due agency

interpretations that (i) are the result of less formal processes

than formal notice-and-comment rulemaking and (11) restore a

prior agency position.

A. There Is Significant Confusion In The Courts Of

Appeals About The Extent Of Deference Due

“Less Formal” Department Of Labor Statutory

Interpretations.

—

The Ninth Circuit’s refusal to defer to an agency opinion

letter implicates a key open question concerning the degree of

deference due agency interpretations that are not the product

of notice-and-comment rulemaking or formal adjudications.

The considerable confusion, and unusual expressions of

frustration, that this question has occasioned in the lower

courts demonstrates the pressing need for guidance from this

Court.

1. Prior to the decision in United States v. Mead, 533

U.S. 218 (2001), this Court stated in Christensen v. Harris

County, 529 U.S. 576 (2000), that agency “[i}nterpret.cions

such as those in opinion letters—like interpretations

contained in policy statements, agency manuals, and

enforcement guidelines, all of which lack the force of law—

do not warrant Chevron-style deference,” id. at 587—i.e., the

legally binding effect given to formal and non-arbitrary

interpretations of ambiguous statutory provisions by the

agency charged with administering those provisions. See

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 844 (1984). In Mead, however, the Court appeared

to retreat from Christensen’s broad statement, explaining that

Chevron deference may still apply to less formal agency

statutory interpretations “when it appears that Congress

delegated authority to the agency generally to make rules

carrying out the force of law”—a showing that may be made

“in a variety of ways.” 533 U.S. at 226-27.

Shortly thereafter, in Barnhart v. Walton, 535 U.S. 212

(2002), the Court confirmed its apparent departure from the

stark language of Christensen, observing that even where an

“gency “reached its interpretation through means less formal

than ‘notice and comment’ rulemaking,” this “does not

automatically deprive that interpretation of the judicial

deference otherwise its due” under Chevron. Id. at 221. “If

this Court’s opinion in Christensen . .. suggested an absolute

rule to the contrary, our later opinion in... Mead . . . denied

the suggestion.” /d. at 222 (citations omitted).’ The Court

went on to state that:

the intérstitial nature of the legal question, the related

expertise of the Agency, the importance of the question

to administration of the statute, the complexity of that

administration, and the careful consideration the Agency

has given the question over a long period of time all

indicate that Chevron provides the appropriate legal lens

through which to view the legality of the Agency

interpretation here at issue.

Id. Put another way, whether Chevron deference is due

“depends in significant part upon the interpretive method used

and the nature of the question at issue.” /d.

Thus, while the Court has clearly stated that some set of

agency interpretations derived from less formal means are

entitled to Chevron deference, and has specifically left open

the possibility that agency opinion letters may qualify for

such treatment, it remains entirely unclear which “less

formal” interpretations are entitled to such deference. Indeed,

’ The Court again confirmed its full retreat from Christensen in Alaska

Department of Environmental Conservation vy. EPA, where it

conspicuously omitted “opinion letters” from its quotation of Christensen:

“Interpretations such as those in ... policy statements, agency manuals,

and enforcement guidelines, all of which lack the force of law—do not

warrant Chevron-style deference.’” U.S. —, 124 S. Ct. 983, 1001

(2004) (ellipses in original).

numerous courts and commentators have openly sought

clarification of the “important questions [left] unanswered”

by Mead and Barnhart. Kenneth Culp Davis & Richard J.

Pierce, Jr., Administrative Law Treatise § 3.5, at 5, 10 (4th ed.

2003 Supp.); see, e.g., Robert A. Anthony, Keeping Chevron

Pure, 5 Green Bag 371, 371 (Summer 2002) (Barnhart has

“sow[n] the seeds of grievous confusion in the law of

Chevron deference”). As Judge Richard Posner put it,

although Barnhart suggests “a merger between Chevron

deference and Skidmore’s . . . approach” of varying deference

according to the circumstances, after Barnhart, all that is

clear is that Chevron deference may be due where there is

“something more formal, more deliberative, than a simple

announcement.” Arzalaic v. Republic Title Co., 314 F.3d

875, 879, 881 (7th Cir. 2002), cert. denied, 123 S. Ct. 2641

(2003). Exactly what that “something” may be, however,

remains elusive. “After Mead, it is possible to know only that

... less formal pronouncements like interpretive rules and

informal adjudications may or may not be entitled to Chevron

deference.” Davis & Pierce, Jr., supra, § 3.5, at 6-7; see Matz

v. Household Int'l Tax Reduction Inv. Plan, 265 F.3d 572,

575 (7th Cir. 2001) (although Mead indicated “that Chevron

deference may apply to interpretations developed from less

formal rulemaking procedures, it did not expressly outline

when this would be the case”), cert. denied, 535 U.S. 954

(2003).

2. In particular, there is considerable confusion in the

lower courts concerning the degree of deference due the very

type of agency proneuncement that was at issue in

Christensen and is again at issue here—a Labor Department

opinion letter. As Judge Edith Jones observed on behalf of

the Fifth Circuit, “reliance on Christensen wholly to forestall

our deferring to these authorities is ... misplaced” after

Barnhart and Mead. Houston Police Officers’ Union v. City

of Houston, Tex., 330 F.3d 298, 304 n.7 (Sth Cir.), cert.

denied, 124 S. Ct. 300 (2003). But the court also recognized:

“Nor is it clear, after ... Mead ... whether these

pronouncements are sufficiently authoritative to merit

Chevron deference.” /d. at 304-05 (citation omitted).

Similarly, a recent opinion from the Sixth Circuit reflects the

confusion over what level of deference applies to these

interpretations. See Herman v. Fabri-Centers of Am., Inc.,

308 F.3d 580, 592 (6th Cir. 2002) (acknowledging the “great

deference” generally accorded the officers and agency

charged with statutory enforcement, but merely noting “([t]he

informative nature” of the Administrator’s opinion letters and

stating “we would hold as we do even in the absence of such

opinion letters”), cert. denied, 537 U.S. 1245 (2003).

Much of this confusion arises from the fact that, while

Mead requires courts to focus on Congress’s intent in

delegating power to the agency to determine whether an

agency's action has the force of law, it “[uJnfortunately[] . . .

provides incomplete guidance about how courts should

undertake this inquiry.” Thomas W. Merrill & Kathryn

Tongue Watts, Agency Rules With The Force Of Law: The

Original Convention, 116 Harv. L. Rev. 467, 470 (2002). In

particular, neither Mead nor any subsequent case answers the

fundamental question: “what language must Congress use to

indicate that an agency has been given power to make rules

with the force of law?” /d. at 591.

Because there is a clear and significant need for an

elaboration of Mead’s standards generally, and in particular

their application to the recurring question of the deference

due a Department of Labor opinion letter, this Court should

grant the petition and rule that the power Congress bestowed

on the Administrator with respect to opinion letters entitles

such letters to Chevron deference. The opinion letters of the

Administrator are equivalent to the opinion letters of the

Comptroller of the Currency, whose “deliberative

conclusions” concerning the meaning of a banking statute

were entitled to Chevron deference. NationsBank of N.C.,

N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257

(1995) (internal quotation marks omitted). Just as the

Comptroller has “personal authority’ under the National

Bank Act,” and “‘is charged with the enforcement of banking

laws,” Mead, 533 U.S. at 231 & n.13, so too here, the

Administrater is appointed by the President, confirmed by the

Senate, and is charged with “administration and enforcement”

of the FLSA, 29 U.S.C. § 204(a); see 29 C.F.R. § 790.1(b).

Moreover, in stark contrast to the United States Customs

Service tariff classification rulings at issue in Mead, Congress

intended the opinion letters at issue here to have the force of

law in the sense that they may be relied on by third parties as

a good-faith defense against FLSA liability. See 29 U.S.C.

§ 259%(a). Cf. Mead, 533 U.S. at 223, 231-32, 233 (finding

“no indication that Congress meant to delegate authority to

Customs to issue classification rulings with the force of law”

where, for example, the rulings “make[] it clear that a letter’s

binding character as a ruling stops short of third parties,” and

“*no other person should rely on the ruling letter or assume

that the principles of that ruling will be applied in connection

with any [other] transaction’).

3. The current uncertainty about when Chevron

deference applies necessarily implicates the degree of

deference owed agency interpretations that reflect a

considered change in position, as was true of the opinion

letter at issue here. Before Mead and Barnhart, agency

consistency was analyzed differently depending upon whether

the agency’s interpretation was entitled to Chevron deference,

or to the less robust deference described in Skidmore v. Swift

& Co., 323 U.S. 134 (1944). Thus, the deference due under

Skidmore varied according to Justice Jackson’s familiar host

of factors which included, among other things, the

“consistency with earlier and later pronouncements.” /d. at

140. Conversely, Chevron recognized that an agency may

have a range of reasonable choices “not instantly carved in

stone,” but subject to reconsideration “on a continuing basis.”

467 U.S. at 863-84. Under Chevron, therefore, it is “entirely

appropriate” for an agency’s interpretation to change,

considering that agencies are part of the “political branch of

the Government” tasked with “resolving the competing

interests which Congress itself either inadvertently did not

resolve, or intentionally left to be resolved by the agency

charged with the administration of the statute in light of

everyday realities.” /d. at 865-66; see Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 742 (1996) (“the whole point of

Chevron is to leave the discretion provided by the ambiguities

of a statute with the implementing agency” provided its

changes are not “[s}udden and unexplained”).

Barnhart suggests, however, that an agency’s consistency

may be a consideration in determining whether Chevron

deference is due at all. Emphasizing that “the Agency’s

interpretation is one of long standing,” the Court in Barnhart

suggested that this “careful consideration the agency has

given over a long period” contributed to “indicate that

Chevron” applied. 535 U.S. at 221-22; see also Mead, 533

U.S. at 247, 249-50 (Scalia, J., dissenting) (“Skidmore

deference gives the agency’s current position some vague and

uncertain amount of respect, but it does not, like Chevron,

leave the matter within the control of the Executive Branch

for the future.”) (emphasis added; emphasis in original

omitted). Indeed, Judge Posner has interpreted Barnhart to

suggest “a merger between Chevron deference and

Skidmore’s,” \eaving the lower courts in a “thicket” of

unanswered questions. Krzalaic, 314 F.3d at 879, 881.

This case thus presents an opportunity to resolve the current

confusion. The lower court simply rejected the

Administrator’s Opinion Letter because it reflected a change

in position from a prior interpretation adopted in 1997. if, as

petitioner contends, the Administrator’s opinion letters are

entitled to Chevron deference, the lower court’s action was

plainly erroneous. Alternatively, if, as Barnhart suggests,

agency consistency is a factor in determining whether

Chevron deference applies, the Administrator’s thoughtful

and _ well-reasoned decision to repudiate a_ recent

interpretation, and reinstitute a prior position of far longer

standing, affords this Court an opportunity to answer the

many questions that Barnhart raised in this area.

B. The Degree Of Agency Deference Due “Less

Formal” Agency Interpretations Is Recurring

And Important.

That the degree of deference due “less formal” agency

interpretations of statutory terms is an important and recurring

question is self-evident. Indeed, it implicates a core question

of administrative law: in what circumstances must courts

defer to an agency’s interpretation of ambiguous statutory

provisions. As is apparent from the above discussion,

confusion about the degree of deference due the Department

of Labor’s opinion letters alone presents an important,

recurring and unanswered question.

The need for guidance on the degree of deference due a

variety of “less formal” agency determinations also

reverberates through a number of agency contexts. As one

leading commentator explains, the “[c]ircuit courts are

struggling in their efforts to apply . . . Chevron to a variety of

types of agency pronouncements.” Davis & Pierce, Jr., supra,

§ 3.5, at 10. Described another way, the Court’s recent cases

“leave[] us searching for the tests that might determine which

informal adjudications qualify for Chevron deference,” but

“{ujnfortunately, we have no idea” what appropriate

lawmaking procedures might be. William S. Jordon, United

States v. Mead: Complicating the Delegation Dance, 3}\

Envtl. L. Rep. 11425, 11428-29 (2001).

Accordingly, the Court should grant certiorari to provide

additional direction to the courts of appeals for determining

whether, in general, “less formal” agency interpretations such

as Opinion letters are entitled to Chevron deference and, in

particular, whether the Administrator’s opinion letters are so

entitled.

C. The Ninth Circuit Erred In Utterly Disregarding

The Agency’s Interpretation.

In all events, the Ninth Circuit below erred by rejecting out

of hand the agency’s “new” interpretation. If Chevron

applies, the Ninth Circuit erred in disregarding the agency's

view where the agency did not succumb to the “pitfalls” of

agency change (such as making “[s]udden and unexplained

change”), given that “the whole point of Chevron is to leave

the discretion provided by the ambiguities of a statute with

the implementing agency.” Smiley, 517 U.S. at 742. If

Skidmore applies, the Ninth Circuit erred by “ignor[ing] the

agency interpretation.” Thomas W. Merrill & Kristin E.

Hickman, Chevron's Domain, 89 Geo. L.J. 833, 855 (2001).

The Ninth Circuit failed to “assess that interpretation against

multiple factors and determine what weight [it] should be

given” in a “nuanced, context-sensitive rubric” /d. at 836,

855. Thus, to the extent Chevron does not apply, this case

presents an opportunity for the Court to clarify that, even

under Skidmore, courts cannot refuse to defer to a well-

reasoned change in an administrative interpretation simply

because the new interpretation represents a change in agency

position.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

WILLIAM A. Norris CARTER G. PHILLIPS*

JOEL M. COHN JOSEPH R. GUERRA

Rex S. HEINKE REBECCA K. Woop

L. RACHEL HELYAR SIDLEY AUSTIN BROWN

AKI'\ GUMP STRAUSS & Woop LLP

HAVER & FELD LLP 1501 K Street, NW

2029 Century Park East Washington, DC 20005

Suite 2400 (202) 736-8000

Los Angeles, CA 90067

(310) 229-1000

Counsel for Petitioner

February 26, 2004 * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

Nos. 02-35042, 02-35110.

GABRIEL ALVAREZ, individually and as class representative;

RANULFO GUTIERREZ, individually and as _ class

representative; PEDRO HERNANDEZ, individually and as

class representative; MARIA MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Plaintiffs-Appellees,

Vv.

IBP, INC., a Delaware corporation,

Defendant-Appellant.

GABRIEL ALVAREZ, individually and as class representative;

RANULFO GUTIERREZ, individually and as_ class

representative; PEDRO HERNANDEZ, individually and as

class representative; MARIA MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Plaintiffs-Appellants,

Vv.

IBP, INC., a Delaware corporation,

Defendant Appellee.

Argued and Submitted April 8, 2003.

Filed Aug. 5, 2003

Appeal from the United States District Court for the

Eastern District of Washington; Robert H. Whaley,

United States District Judge, Presiding. D.C. No. CV-98-

05005-RHW.

Before D.W. NELSON, THOMAS, Circuit sudges, and

ILLSTON, District Judge.’

THOMAS, Circuit Judge. —

Perhaps the packing plant employees in Pasco, Washing-

ton, should have heeded Henry David Thoreau’s warning to

“beware of all enterprises that require new clothes.” The

central dispute in this class action lawsuit is whether IBP, Inc.

(“IBP”) should be required to compensate its employees for

the time it takes to change into required specialized protective

clothing and safety gear. Under the circumstances presented

by this case, we conclude that it must. We affirm in part and

reverse in part.

From the time that publication of Upton Sinclair’s novel

The Jungle provoked President Theodore Roosevelt to secure

passage of the Meat Inspection Act of 1906, the meat packing

industry has been one of the most regulated businesses in the

United States. This is not only a product of concerns over

food purity. According to the United States Department of

Labor’s Bureau of Labor Statistics, employment at a packing

plant is still one of the most dangerous jobs in America, with

multiple thousands of workers injured on the job every year.

See U.S. Dep’t of Labor, Bureau of Labor Statistics, /ndustry

Injury and Illness Data (2002), at http://www.bls.gov/iif/

oshsum.htm.

IBP, Inc. is the world’s largest producer of fresh beef, pork,

and related products. Headquartered in Dakota Dunes, South

Dakota, IBP operates a number of meat processing plants

throughout the American West and Midwest. Through meat-

related innovation and gradual corporate acquisition, IBP has

built a substantial food empire, reaping over $13 billion in

' The Honorable Susan Y. Illston, United States District Judge for the

Northern District of California, sitting by designation.

sales in 1999 alone.

Among IBP’s many meat processing facilities is a “kill and

processing plant” in Pasco, Washington (“the Pasco plant”).

As the moniker suggests, the Pasco plant includes slaughter

and processing work sections, both of which play a direct role

in the carcass “disassembly process.” The disassembly of a

beef carcass takes two-to-three days. After the animal is

killed, the carcass moves along a series of chains in the

slaughter division, eventually coming to rest in a cooled

storage facility. After remaining in storage for at least

twenty-four but no more than forty-eight hours, the carcass is

transported across a group of chains and belts in the

processing division, where processing employees cut, trim,

and divide the carcass into a variety of pieces.

The Pasco plant divides its slaughter and processing staffs

into separate work crews, assigning these crews to work

shifts. Pasco plant production line employees, who are

represented by Teamsters Local Union No. 556 and who are

covered by a collective bargaining agreement, are required to

be at their work stations and prepared to work as the first

piece of meat comes across the production line. However,

before they are able to assume their work stations all Pasco

plant employees must complete a number of preliminary

tasks, and before employees may leave the Pasco plant at the

end of a shift, most of these preliminary tasks must be

completed in inverse form. Each Pasco plant job classifica-

tion has specific tool, supply, walk-time, and gear require-

ments, so each employee’s preliminary and postliminary

duties are somewhat distinct; still, for all Pasco plant

production line employees, a general pattern obtains: At the

start of a shift, Pasco plant employees must gather their

assigned equipment, don that equipment in one of the Pasco

plant’s four locker rooms, and prepare work-related tools

before venturing to the slaughter or processing floors. At

the end of every shift, employees must clean, restore, and

replace their tools and equipment, storing all of it at the Pasco

plant itself.”

Until July of 1998, the Pasco plant’s shifts ran eight hours,

the first four-hour block of which was split by a paid fifteen-

minute rest-break, and the two four-hour spans of which were

divided by a thirty-minute unpaid meal break.’ In July of

1998, IBP restructured its shift time to include four minutes

of so-called “clothes” time, thereby reducing the overall work

time to seven hours and fifty-six minutes. In the fall of 1999,

the Pasco plant reduced its shift time to seven hours and fifty-

? The record is replete with lists of outer garments and protective

equipment the Pasco plant employees must don and doff. The district

court’s findings of fact on this point are thorough. In sum, all employees

must wear a sanitary outer garment that is provided and washed each night

by IBP; all employees must wear some form of a plastic hardhat, a hair

net, and ear plugs, and all employees—save “gutter” employees in the

slaughter division—must wear a face shield or safety goggles; all

employees wear some sort of glove, with most processing employees

using a number of sets per day of grip-facilitative and warmth-providing

“yellow cotton gloves,” and with some slaughter employees donning these

yellow gloves and/or plastic or rubber gloves for enhanced grip and

protection against blood and water saturation; all employees wear liquid-

repelling sleeves, aprons, and leggings; all employees wear safety

boots/shoes, all of which must be wiped/hosed after the end of a shift;

and many employees opt to wear weight-lifting-type belts to prevent back

injury. In addition, so-called “knife users” don an assortment of

protective gear on their hands, arms, legs, and torsos; this gear often

constitutes chain-link (i.¢., “mesh”) metal aprons, leggings, vests, sleeves,

and gloves, and plexiglass arm guards, Kevlar gloves (that is, “can’t cut”

or “Polar” gloves), and puncture-resistant protective sleeves.

>In the early 1970’s, the Pasco plant’s first proprietor, Columbia

Foods, entered a collective bargaining agreement with the union in which

employees were allotted thirty minutes per week for “clothes changing.”

In 1976, IBP purchased the Pasco plant from Columbia Foods, and

included a similar “clothes changing” provision in the 1979 iteration of

the bargaining agreement. In the 1982, 1986, 1992, and current_ versions

of the collective bargaining agreement, however, “clothes changing time”

was negotiated but excluded.

one minutes. Long-running litigation between IBP and the

United States Department of Labor (hereinafter “USDOL”) in

the 1990s spurred much of IBP’s shift-time reduction. In the

course of that litigation, damage and wage issues comparable

to those raised in this case were decided, but the litigation

focused singularly on IBP’s non-unionized plants. See Reich

v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir.1994) (holding IBP

liable for unpaid pre-shift and post-shift donning, doffing, and

cleaning of special packinghouse industry safety equipment

and for time spent between waiting to pick up and return

knives).* .

Once a shift begins, the Pasco plant employees’ time is

strictly regulated and monitored. As a rule, employee rest or

meal-break time begins as soon as the last piece of meat

passes on the production line, and, as a rule, employees must

be completely prepared to resume work as soon as the break

period ends. When departing the processing and slaughter

floors—whether to go to the cafeteria or to the restroom>—

employees are permitted to leave only hats, hairnets, goggles,

earplugs, and boots in place; outer garments, protective gear,

gloves, scabbards, and chains must be removed. For many

Pasco plant employees, the operation of IBP’s mandatory

donning and doffing rules necessarily impinges—if not

more—their unpaid thirty-minute meal break time.

* Apparently as a consequence of IBP’s decision to relocate its knife

distribution areas and to reposition sinks along its production line, IBP

and USDOL agreed to lower an initial fourteen-minute figure to four

minutes in 1998. In April 1998, the Department of Labor filed 2 second

complaint against IBP, seeking back pay for post-Reich FLSA violations

at IBP’s non-unionized plants. See Herman v. IBP, 98-CV-2163-JWL

(D.Kan.).

* IBP “strongly encourages” its employees to use the restroom only

during unpaid meal break time, expressly limiting non-break-time

restroom use to situations of emergency. “Such emergencies,” IBP

instructs its employees, “should seldom occur.”

To help monitor employee arrival and departure times, IBP

instituted a mandatory, computerized “swipe card” system at

the Pasco plant. IBP does not use the data its swipe card

system gathers in calculating employee pay. Instead, IBP

pays its Pasco plant employees according to a “gang time

pay” model, which bases employee remuneration entirely on

the times during which employees are actually cutting and

bagging meat. Under this “gang time” framework, the period

in which IBP considers its employees to be performing

compensable work commences with the processing of the

first piece of meat and ends with the processing of the last,

notably excluding any time spent abiding the Pasco plant’s -

required pre or post-shift routines.

In 1999, believing parts of IBP’s compensation practices to

be unlawful, the Pasco plant’s slaughter and processing

employees brought this class action suit under § 16(b) of the

Fair Labor Standards Act (“FLSA”), see 29 U.S.C. § 216(b)

(1999), and related provisions of Washington’s Minimum

Wage Act (“WMWA”) in United States District Court for the

Eastern District of Washington. Three aspects of their work-

day animated plaintiffs’ claim: (1) the pre-shift donning of

protective gear and the preparation of work-related tools,

including the attendant waiting and walking; (2) the requisite

donning and doffing of protective gear during the thirty-

minute unpaid mea!-break; and (3) the post-shift doffing,

cleaning, and storing of protective gear and tools.

In response to plaintiffs’ complaint, IBP promptly filed a

motion for summary judgment with the district court, raising

a series of interrelated state and federal defenses to plaintiffs’

claims. Rejecting IBP’s Labor Management Relations Act

preemption theory, the district court granted in part and

denied in part IBP’s first summary judgment motion.

Just over a year later, the district court denied another of

IBP’s motions for summary judgment, concluding that

Washington state courts were “likely” to adopt a per-hour

a tt ee ns

standard of minimum wage compliance under the WMWA

because (1) the Washington legislature refused to incorporate

correlative FLSA language, thereby refusing to adopt FLSA’s

uniform application of the workweek standard, and (2) the

Washington Supreme Court had condoned the use of a per-

hour method in Seattle Professional Engineering Employees

Association v. Boeing Co., 139 Wash.2d 824, 991 P.2d 1126

(2000), placing that court’s imprimatur on a non-workweek

approach in certain contexts.

A month later, the district court issued a multi-part order,

excluding plaintiffs from the ambit of the Revised Code of

Washington § 49.46.130(2)(g)(ii)’s exemption of “agricul-

tural workers” from Washington’s forty-hour week rule,

finding IBP’s potentially willful violation of plaintiffs’ rights

preclusive of summary judgment on plaintiffs’ exemplary

damage claim, declaring IBP’s putative good faith too dubi-

ous to allow summary judgment, and rejecting IBP’s efforts

to import the holding of Reich, 38 F.3d at 1123, wholesale

regarding what activities are and are not compensable. A

twenty-day bench trial followed.

In spring of 2001, plaintiffs filed a particularized motion

for reconsideration, targeting the district court’s grant of

IBP’s motion for summary judgment on their separate

Washington Administrative Code § 296-126-092 (1999) rest-

break claim. Citing the Washington Court of Appeals’ loca-

tion of an implied cause of action for such claims in Wingert

v. Yellow Freight Systems, Inc., 104 Wash.App. 583, 13 P.3d

677 (2001), aff'd, 146 Wash.2d 841, 50 P.3d 256 (2002), the

district court granted plaintiffs’ motion to reconsider and

reversed its prior implied right of action decision.

Soon thereafter, the district court conducted a hearing on

trial objections, and, weeks later, the district court memorial-

ized its myriad conclusions in another multi-part order. In

pertinent part, the district court permitted plaintiffs to recover

pay on their state meal-break claim for each minute of break

time lost up to ten minutes, granting a full thirty-minute

award to those losing any more than ten minutes; endeavored

to calculate damages along the narrowest and most accurate

job categories possible; found plaintiffs’ trial testimony

adequate to establish what equipment in addition to IBP’s

job-specific lists was “integral and indispensable” to particu-

lar job classifications; and, for most Pasco employees,

declared the first “compensable activity” to be the donning of

protective gear and the last compensable activity to be the

doffing of that gear, thus including in the district court’s

aggregate “compensable” period time spent walking to and

from locker room and work station, time spent donning and

doffing gear in order to comply with IBP’s meal and rest-

break exit and entry requirements, and time devoted to

waiting for, preparing, handling, replacing, and washing

“compensable” equipment.

To similar effect, on September 14, 2001, the district court

issued thorough findings of fact and conclusions of law. On

plaintiffs’ federal law claims, the district court applied 29

U.S.C. § 255(a)’s three-year statute of limitations, also

finding that the representative evidence adduced by the

plaintiffs adequately and accurately supported a damage

award for all plaintiffs, notwithstanding somewhat discrepant

job-specific donning and doffing rates, and concluding that

FLSA required compensation® for all of plaintiffs’ work

time—e.g., donning, doffing, and cleaning of “integral and

indispensable” protective gear; waiting and some walking

time during the workday—both during pre-shift and post-shift

times and during the thirty-minute meal-break.

in contrast, as non-compensable “work,” the district court listed

donning and doffing of mon-protective gear (¢.g., hard-hats, frocks, ear

plugs, safety goggles, and hair nets as non-protective gear), finding it

concomitantly less-than-integral to the job and demanding of only de

minimis time.

ee eet eon

On plaintiffs’ state law claims, the district court again

rejected IBP’s preemption theses, determining IBP to have

infringed plaintiffs’ right to be paid for all hours worked

under Revised Washington Code §§ 49.46.020 and 49.46.030

(I 999), and finding IBP to have violated plaintiffs’ state law

rights vis-a-vis meal-break time and second rest-break time,

paralleling FLSA in assigning damages for the state meal-

break claim.

The district court also rejected IBP’s state-law and FLSA-

based defenses. On the former, the district court determined

that the Washington Supreme Court’s decision in Jnniss v.

Tandy Corp., 141 Wash.2d 517, 7 P.3d 807 (2000) (En Banc),

did not mandate adoption of the workweek standard as a

matter of state law for hourly employees. On the latter, the

district court found that 29 U.S.C. § 203(0) (1999), which

excludes “clothes changing” and “washing” time from com-

pensable time when these activities are the subject of

collective bargaining, offered IBP no relief because

§ 203(0)’s “changing clothes” and “washing” exclusions did

not reach donning, doffing, and cleaning of specifically

protective, non-clothing-like gear; that IBP lacked “good

faith”; and that the Portal-to-Portal Act did not operate to

plaintiffs’ disadvantage because the donning, doffing, and

cleaning of protective gear was “integral and indispensable”

to their jobs, fulfilling mutual obligations of employer and

employee. Walking and waiting time, the district court

continued, occurred during the principal workday and was

thus compensable.

For IBP’s FLSA and state-law violations, the district court

awarded plaintiffs liquidated damages, a measure of “double”

(i.e., exemplary) damages with regard to plaintiffs’ state

meal-break claims, and prejudgment interest. Over the next

few months, the district court denied plaintiffs’ motion for

injunctive relief, conducted a hearing on plaintiffs’ motion for

fees and sanctions, and memorialized its fee hearing decisions

10a

i oing Order.’ In its fee Order, the district court

re om ay dn Rules of Civil Procedure 52 and 59

motions and denied plaintiffs’ motion to strike certain aspects

of the record. Both IBP and plaintiffs filed timely notices of

appeal. We have jurisdiction under 28 U.S.C. § 1291.

It is axiomatic, under the FLSA, that employers must pay

employees for all “hours worked.” See 29 U.S.C. §§ 206, ne

(1999); Turner v. City of Philadelphia, 262 F.3d 222, 224 (

Cir.2001). The threshold question in this case is whether the

activities cited by the plaintiffs—donning and doffing,

waiting and walking—constitute “work” under the FLSA. We

agree with the district court that, under the facts presented by

this case, they do.

“Work,” the Supreme Court has long noted, is “physical or

mental exertion (whether burdensome or not) controlled or

required by the employer and pursued any

primarily for the benefit of the employer. See Tenn. Coal,

Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598,

64 S.Ct. 698, 88 L.Ed. 949 (1944). Definitionally incorpora-

tive, Muscoda’s “work” term includes even non-exertional

acts. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65

S.Ct. 165, 89 L.Ed. 118 (1944) (noting that even hs iS

ine qua non of “work” because “an employer . . .

ae a Am to do nothing, or to do nothing but wait for

something to happen’’).

laintiffs’ donning and doffing, as well as the attendant

aan and ain constitute “work” under Muscoda and

Armour’s catholic definition: “pursued necessarily and pri-

marily for the benefit of the employer,” Muscoda, 321 US. at

598, 64 S.Ct. 698, these tasks are activity, burdensome or not,

’ Neither party has challenged any aspect of the district court's fee

decision.

performed pursuant to IBP’s mandate for IBP’s benefit as an

employer. 323 U.S. at 133, 65 S.Ct. 165, 321 US. at 598, 64

S.Ct. 698. The activities, therefore, constitute “work.”

That such activity is “work” as a threshold matter does not

mean without more that the activity is necessarily com-

pensable. The Portal-to-Portal Act of 1947 relieves an

employer of responsibility for compensating employees for

“activities which are preliminary or postliminary to [the]

principal activity or activities” of a given job. 29 U.S.C.

§ 254(a) (1999). Not all “preliminary or postliminary”

activities can go uncompensated, however. “[A]ctivities

performed either before or after the regular work shift,” the

Supreme Court has noted, are compensable “if those activities

are an integral and indispensable part of the principal

activities.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct.

330, 100 L.Ed. 267 (1956); see also Mitchell v. King Packing

Co., 350 U.S. 260, 261, 76 S.Ct. 337, 100 L.Ed. 282

(1956); 29 C.F.R. § 790.7(h) (1999) (“[A]n activity which

is a ‘preliminary’ or ‘postliminary’ activity under one set

of circumstances may be a principal activity under other

conditions.”).

The Supreme Court’s approach to this “principal,” “inte-

gral and indispensable” duty question is context-specific. To

be “integral and indispensable,” an activity must be necessary

to the principal work performed and done for the benefit of

the employer. See Barrentine v. Arkansas-Best Freight Sys.,

Inc., 750 F.2d 47, 50 (8th Cir.1984), cert. denied, 471 US.

1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985); Dunlop v. City

Elec., Inc., 527 F.2d 394, 398 (Sth Cir.1976). Plaintiffs’

donning and doffing of job-related protective gear satisfies

Steiner’s bipartite “integral and indispensable” test.

First, because the donning and doffing of this gear on the

Pasco plant’s “premises is required by law, by rules of [TBP],

[and] by the nature of the work,” see 29 C.F.R. § 790.8(c)

n.65 (1999), this donning and doffing is “necessary” to the

12a

“principal” work performed. From sanitary aprons to metal-

mesh gear, IBP “by rule ],” éd., mandates the donning and

doffing of clothes and gear at various intervals throughout the

workday, requiring employees to wait for and to retrieve that

gear in particular areas at particular times on the Pasco plant’s

premises. See Steiner, 350 U.S. at 256, 76 S.Ct. 330. United

States Department of Agriculture sanitation standards and

Occupational Safety and Health Administration (hereinafter

“OSHA”) industry standards bolster this “by rule” con-

clusion, demanding maintenance of sanitary conditions, 9

C.F.R. § 308.3, and the provision of protective equipment at

the Pasco plant “wherever[ }[ ] necessary by reason of

hazards or processes of [work] environment.” 29 C.F.R.

§ 1910.132(a) (1999).

Second, it is beyond cavil that the donning, doffing,

washing, and retrieving of protective gear is, at both broad

and basic levels, done for the benefit of IBP. See generally

United Transp. Union Local 1745 v. City of Albuquerque, 178

F.3d 1109, 1116 (10th Cir.1999). These plaintiff-performed

activities allow IBP to satisfy its requirements under the law,

see 9 C.F.R. § 308.3 (1999); 29 C.F.R. § 1910.132(a) (1999),

and these activities prevent unnecessary workplace injury and

contamination, both of which would inevitably impede IBP’s

“disassembly” process. Under Steiner, plaintiffs’ donning,

doffing, and cleaning activities are “integral and indispensa-

ble” to Pasco’s “principal” activity.

This “integral and indispensable” conclusion extends to

donning, doffing, and cleaning of non-unique gear (e.g.,

hardhats) and unique gear (e.g., Kevlar gloves) alike. Little

time may be required to don safety glasses and the use of

safety goggles is undoubtedly pervasive in industrial work.

But ease of donning and ubiquity of use do not make the

donning of such equipment any less “integral and

indispensable” as that term is defined in Steiner. Safety

goggles are, like metal-mesh leggings, required by IBP, ane

13a

they are, like metal-mesh leggi

, -mi eggings, necessary to th -

re of the principal work. Both os “Seen oa

ispensable” under Steiner’s exception to the Portal-to-

Portal Act’s bar to c . eee

nary activity. ompensation of preliminary or postlimi-

However, we agree with the distri

ever, e district court’s alt i

ee to why the time spent donning and A cams

protective gear such as hardhats and safi s

not compensable: The time it takes en rae

pe to perform th

2 nag wap protective gear is de minimis ah

pohineny As a general rule,” we have noted, “employees

= rot recover for otherwise compensable time if it is de

anon “as 4 United States, 738 F.2d 1057, 1061-62

. “When the matter in issue conc

oot ong or minutes of work beyond i ae

g hours,” the Supreme Court has ob

( observed, “such

mony we t ea for] [s]plit-second absurdities are

Ctualities or working conditions or b

policy of the [FLSA].” Anderson v. M cota

. Mt. Clemens Pott

328 U.S. 680, 692, 66 S.Ct. 1187, 90 | 1940). Aa

» 692, ‘Ct. 1187, 90 L.Ed. 1515 (1946). A

Ay there posited > an alternative man to in

7 onning and doffing non-unique i

ae although essential to the job[ ] and aad te Ge

employer, is at once so insubstantial and so difficult to

monitor that it “is de minimi ”

ashe t S$ de minimis as a matter of law.” 38 F.3d at -

We agree with this conclusi

on, hoth as a matter of logi

ron as a matter of law. While we do not suggest that the

- pe 7" + is “trifl[ing],” see Mt. Clemens, 328

S. J Ct. 1187, we do believe that neith

: 1187, . er FLSA

— nor “the actualities of plaintiffs’ working conditions

sored a for the time spent performing these

s. Accordingly, donning and doffin i

% » do g of all protect

ed ~ integral and indispensable to “the sstastand estietiien

r which [the plaintiffs] are employed,” Steiner, 350 U.S at

14a

256, 76 S.Ct. 330, and generally compensable. However, the

specific tasks of donning and doffing of non-unique

protective gear such as hardhats and safety goggles is

noncompensable as de minimis. Lindow, 738 F.2d at 1061.

In sum, we agree with the district court’s conclusion, but

for different reasons in part. In this context, “donning and

doffing” and “waiting and walking” constitute compensable

work activities except for the de minimis time associated with

the donning and doffing of non-unique protective gear.

The FLSA contains an exception for “any time spent in

changing clothes” that .vas excluded from compensation

under “the express terms of or by custom or practice under

a bona fide collective-bargaining agreement.” 29 U.S.C.

§ 203(0) (1999) (hereinafter “§ 3(0)”). IBP argues that, even

if compensable in a general sense, the time employees spend

donning and doffing protective gear is non-compensable

under the “changing clothes or washing” exclusion.

Section 3(0) reads in pertinent part:

Hours Worked.—In determining for the purposes of

sections 206 and 207 . . . the hours for which an

employee is employed, there shall be excluded any time

spent in changing clothes or washing at the beginning or

end of each workday which was excluded from

measured working time during the week involved by the

express terms of or by custom or practice under a bona

fide collective-bargaining agreement applicable to the

particular employee.

Id.

Distilled to its essence, this case requires us to decide

whether putting on and taking off protective gear constitutes

“changing clothes” as that phrase is used in the statute.

Neither § 3(0) nor its legislative history defines the phrase,

15a

and no case law assesses the precise question we address

here. See, ¢.g., Nguyen v. Excel Corp., 197 F.3d 200, 203

(Sth Cir.1999) (noting that plaintiffs raised a similar § 3(0)

safety gear claim but not reaching the issue). In light of this

doctrinal, statutory, and legislative lacunae, we give the

relevant language its “ordinary, contemporary, common

meaning.” United States v. Akirtobi, 159 F.3d 401, 403 (9th

“ ce. + amaaage arog marks omitted) (quoting Perrin

v. United States, U.S. 37, 42, Ct.

anten 2, 100 S.Ct. 311, 62 L.Ed.2d

The parties posit various dictionary definitions and

regulatory references, mostly confined to discussing the

etymology of the word “clothes” and, in particular, its

commonly understood meaning during the year in which

§ 3(0) was adopted. IBP argues that “clothes” must mean

‘whatever is worn as covering for the human body,” citing

Webster's New International Dictionary of the “English

Language 507 (2d ed. unabridged 1939). IBP’s construction

would embrace any conceivable matter that might adorn

the human body, including metal-mesh leggings, armor

spacesuits, not gear, or mascot costumes. Citing the came

oo — plaintiffs contend that the meaning of

e word is limited 7

wile to covering worn “for decency or

. Viewed in statutory context, it is evident that the phrase

changing clothes” was not employed in the expansive

fashion urged by IBP. First, FLSA exemptions, the Supreme

Court has long counseled, “are to be narrowly construed

against the employers seeking to assert them.” Arnold v. Ben

Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d

393 (1960) (citing Mitchell v. Kentucky Fin. Co, 359 US

290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959)); see also Auer

v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79

(1997). Following the Supreme Court’s lead, we have also

read FLSA exemptions—such as § 3(0)—tightly, refusing to

l6a

apply FLSA exemptions “except [in contexts] plainly and

unmistakably within the[ ] [given exemption’s] terms and

spirit.” Klem v. County of Santa Clara, 208 F.3d 1085,

1089 (9th Cir.2000) (internal punctuation omitted; emphasis

added); see also Do v. Ocean Peace, Inc., 279 F.3d 688, 691

(9th Cir.2002); Dole v. W. Extension Irr. Dist., 909 F.2d 349,

351 (9th Cir.1990). The protective gear at issue does not

“plainly and unmistakably” fit within § 3(0)’s “clothing”

term. Absent such a plain and clear § 3(0) fit, Arnold requires

that we construe § 3(0)’s against the employer seeking to

assert it. 361 U.S. at 392, 80 S.Ct. 453. Thus, the exemption

must be construed against IBP.

Second, and perhaps more importantly, specialized

protective gear is different in kind from typical clothing. The

admonition to wear warm clothing, for example, does not

usually conjure up images of donning a bullet-proof vest or

an environmental spacesuit. Rather, personal protective

equipment generally refers to materials worn by an individual

to provide a barrier against exposure to workplace hazards.

OSHA has recognized the difference in its regulations

defining “personal protective equipment”:

Personal Protective Equipment is specialized clothing or

equipment worn by an employee for protection against a

hazard. General work clothes (e.g. uniforms, pants,

shirts or blouses) not intended to function as protection

against a hazard are not considered to be personal

protective equipment.

29 C.F.R. § 1910.1030(b) (1999).

Of course, this OSHA definition was promulgated in a

different context. Nonetheless, it provides a useful analytic

distinction.® It also underscores the fact that, from both a

Sin the context of § 3(0), the distinction makes particular sense

because the section makes the time spent “changing clothes” the proper

subject of collective bargaining, whereas it would not be in the interest of

17a

regulatory and common sen

9 se perspective, “changi

powers means something different from “donning ct

> eer oe protective equipment.” In short. the

court correctly interpreted the “changi

. . . on | c

exception in § 3(0) as not including the time nt cians

personal protective equipment.’ aint

IBP also disputes the distri

istrict court’s view of t

mae, work day. It claims that the district court a.

sane that the compensable work day began with the

act of compensable work. Specificall

' ; y, IBP ar

ge ge not paid for the time spent vine . no

asco plant stations after donnin

et equipment. Under § 4 of the Seahaniaaes tn.

— —_ receive compensation only for “hours worked ”

| tee oe “spony. during the “workday.” 29 U S.C

( ; See also S.Rep. No. 80-48. at 48 947)

(defining “workday” as the period “between the pone rig

public policy to allow disincenti

tives for employers and empl

government-mandated personal protective equipment. wesc

Appearing as an amicus curiae, the United State

, s Secretary

— pee with IBP’s definition of the “changing we ha room

jer a 8 a os covers the donning and doffing of the protective

istrator of the Departme on —s opinion letter, in fact, the admin-

§ 3e)'s clethinn tore ont of Labor’s Wage and Hour Division Stated that

worn by meat pare i - Protective safety equipment typically

1997 opinion letter = emproyees.” This position directly conflicts with a

concluded that the ‘ 7. pe same Division, in which the administrator

encompass protecti pen meaning of ‘clothes’ in section 3(0) does not

reaffirmed oo 197 safety equipment.” A January 15, 2001, letter

directed, “[aJn a cy conclusion. As the Supreme Court has

eundiion eth Oe a Interpretation of a relevant provision which

has Giteenee eee a s earlier interpretation is entitled to considerably

Fonseca, 480 U.S. 421 “446 0 30 07 $ Ct 120 pon Pe tpn

. ier ° . ’ At. 7, J

and we reject the Secretary’s new, inconsistent te a —_—

18a

ment . . . and the termination . . . of the principal activity . . .

which such employee was employed to perform”); 29 C.F.R.

§ 790.6(b) (1999) (noting that the “workday” includes “all

time within that period whether or not the employee engages

in work throughout all of that period”); cf id. §§ 785.16(a),

785.19 (1999). Under § 4, employees have no right to receive

overtime compensation for activities that are “preliminary to

or postliminary to [a job’s] principal activity or activities,” 29

U.S.C. § 254(a) (1999), unless those preliminary or postlimi-

nary activities are “integral and indispensable [to][ ] the

principal activities for which [the employees] are

employed.” Steiner, 350 U.S. at 256, 76 S.Ct. 330; 29 U.S.C.

§ 254(a) (1999).

The district court properly reasoned that the workday

commenced with the performance of a preliminary activity

that was “integral and indispensable” to the work, and the

district court also properly determined that any activity

occurring thereafter in the scope and course of employment

was compensable. Thus, the district court included “the

reasonable walking time from the locker to work station

and back . . . for employees required to don and doff com-

pensable personal protective equipment” in its “compensable”

time measure.

Steiner compels this conclusion. Steiner's “principal

activity” term expressly “embraces all activities . . . integral

and indispensable” thereto, preliminary or otherwise, 350

U.S. at 252-53, 76 S.Ct. 330 (internal quotation marks

omitted); the retrieval and donning of protective equipment

are “integral and indispensable” preliminary activities, and, as

such, are “embrace[d]” by plaintiffs’ “principal [work]

activity.” Jd. All activities performed thereafter—such as

“walking”—thus occur during the “principal” workday and

are compensable. /d.; see also 29 C.F.R. § 790.6(b) (1999).

IBP contends that § 254(a)(1) is a “stand alone” provision

excluding from compensability any and all “walking, riding,

19a

or traveling to and from the actual place of performance of

the principal activity” without regard for the “principal

activity itself. 29 U.S.C. § 254(a)(1) (1999), + cam

Steiner eschews such a construction and directs us to

“embrace” within the “principal activity” all “integral and

indispensable” activities thereto. 350 U.S. at 252-53 76 S.Ct

330. There is nothing in the statute or regulations that would

lead to the conclusion that a workday may be commenced

then stopped while the employee is walking to his station,

then recommenced when the walking is done.'° Plaintiffs

were required to obtain their protective gear from their

lockers and to be present at their work stations as the first

piece of meat arrived; they obviously could not have worked

without walking between these places. The district court

correctly held that Pasco plant w i

( ork time was conti

the sum of discrete periods. —"

IBP contends that it is shielded from liability by FLSA’s

good faith defense provisions. See 29 U.S.C. §§ 259, 260

(1999). One of these provisions, § 259, “was designed to

protect employers from liability if they took certain actions

on the basis of an interpretation of the law by a government

ony. even if the agency’s interpretation later turned out to

> wrong.” EEOC v. Home Ins. Co., 672 F.2d 252. 263 (2d

Cir.1982). In pertinent part, § 259 reads: )

[NJo employer shall be subject te any liabili

punishment for or on sein of the diene ot the

employer to pay . . . overtime compensation under the

[FLSA] re he pleads and proves that the act or

omission complained of was in good faith in conformity

with and in reliance on any written administrative

Pe... see Tum v. Barber Foods, Inc., 331 F.3d 1 (Ist Cir.2003)

ing under the facts of that case that such activity was not

compensable as part of the workday). :

20a

regulation, order, ruling, approval, or interpretation, of

(the relevant USDOL administrator], or any administra-

tive practice or enforcement policy of such agency. ...

29 U.S.C. § 259(a) (1999).

To be insulated from liability under § 259’s good faith

exception, an employer must “show it acted in (1) good faith,

(2) conformity with, and (3) reliance on the DOL’s

regulations or the Administrator’s Opinion Letter.” Frank v.

McQuigg, 950 F.2d 590, 598 (9th Cir.1991). This test has

both objective and subjective components, asking how a

“reasonably prudent [person] would have acted under the

same or similar circumstances” and requiring “that the

employer have honesty of intention and no knowledge of

circumstances which ought to put him upon inquiry.” Id.

(quoting 29 C.F.R. § 790.15(a) (1900)) (internal punctuation

omitted). Section 259’s test also places on employers “an

affirmative duty to inquire about uncertain [FLSA] coverage

issues,” see Keeley v. Loomis Fargo & Co., 183 F.3d 257,

271 (3d Cir.1999) (citing 29 C.F.R. § 790.15(b)), putting “the

risk of a close [good faith] case on the employer.” Reich, 38

F.3d at 1127; see also 29 C.F.R. § 790.15(d) n. 99 (1999)

(“It is not intended that this [good faith] defense [ ] apply

where an employer had knowledge of conflicting rules and

chose to act in accordance with the one most favorable to

him.”) (quoting 93 Cong. Rec. 4390 (1947)). The employer

bears the burden of proof to establish this exception.

IBP argues that its position (1) was supported by the

USDOL’s 1990s litigation strategy because that litigation

focused on non-unionized plants and, in so focusing,

demonstrated an administrative practice and enforcement

policy treating unionized plants as exempt from such

litigation under § 3(0), and (2) is bolstered by the supposed

good faith it demonstrated in studying and implementing a

four-minute compliance plan.

2la

The good faith provisions of § 259 do not embrace IBP’s

conduct. To come within the exception’s reach, an em-

ployer’s acts “must have been taken in reliance on [an]

administrative ruling or interpretation.” Home Ins. Co.. 672

Ho at 264. By their plain terms, court decisions agency

litigation Positions and self-initiated activities are not

administrative rulings or interpretations.” The only agenc

action upon which IBP relies is the enforcement iin

putatively evident in the USDOL’s 1990s litigation strate :

Despite IBP’s contentions to the contrary, however Reich

expressed no opinion regarding the § 3(0) “clothing” issue

and, in Reich, the Tenth Circuit even hinted that IBP’s broad

clothing” definition is untenable. 38 F.3d at 1127. As the

gs court rightly noted, the Reich litigation provided

‘nothing upon which to rely other than its assumptions

about what cl ;

under 3(0).” clothes changing and washing were including

P on _ moreover, litigating positions are regarded quite

ns sa al the law than an “administrative ruling or

yoy - — aa e.g., Bowen v. Georgetown Univ. Hosp.,

Peat ; , 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988);

- rce Invs., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d

162, 1165 (9th Cir.1998). There is a sound basis for the

distinction. As the Supreme Court has explained, “Congress

has delegated to the administrative official and not to

appellate counsel the responsibility for elaborating and

a Statutory commands.” I/nvestment Co. Inst. v

Camp, 401 US. 617, 628, 91 S.Ct. 1091, 28 L.Ed2d 367

a ). Administrative agency constructions of governing

lutes are the product of deliberation and analysis by the

entity charged with application of the statute. Agenc

positions developed in litigation, by contrast, are not of ru

— gpa they are specifically tailored to help obtain a

avo le outcome in a pending controversy in which the

agency is involved. Concessions or settlements within the

course of the administrative litigation also may be made for a

22a

variety of quite justifiable reasons; however, the contextual

underpinnings are dissimilar from agency rule-making.

IBP’s four-minute compliance plan, moreover, merely

embodies an effort to overcome a settlement impasse in a

non-§ 3(0) context, offering no conclusion regarding IBP’s

supposed § 3(0) defense or its otherwise FLSA-violative

conduct. Under the facts presented by this case, the district

court did not err in rejecting IBP’s good faith theory.

If a particular employer’s conduct embodies “willful

violation” of FLSA, 29 U.S.C. § 255(a) permits extension of

the FLSA’s standard two-year statute of limitations to a three-

year period. McLaughlin v. Richland Shoe Co., 486 U.S. 128,

135, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988); see 29 U.S.C.

§ 255(a) (1999). The determination of willfulness is a mixed

question of law and fact, see Reich v. Monfort, 144 F.3d

1329, 1334 (10th Cir.1998), and we review mixed questions

de novo and the factual findings underpinning the

determination for clear error. See Rios v. Rocha, 299 F.3d

796, 799 n. 4 (2002). The district court did not err in

applying § 255’s three-year statute of limitations to plaintiffs’

FLSA claims. Cf, Reich v. Monfort, 144 F.3d at 1334-35.

For § 255’s extension to obtain, an employer need not

knowingly have violated the FLSA; rather, the three-year

term can apply where an employer disregarded the very

“possibility” that it was violating the statute, Herman v. RSR

Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir.1999), although

we will not presume that conduct was willful in the absence

of evidence. Cox v. Brookshire Grocery Co., 919 F.2d 354,

356 (Sth Cir.1990).

To prove a particular FLSAgviolation willful under § 255,

the Supreme Court has, in general, required eviderice of an

employer’s “kn{owing] or [ ] reckless disregard for the matter

of whether its conduct was prohibited by the statute.”

23a

pone Shoe, 486 U.S. at 133, 108 S.Ct. 1677 (citing Trans

orld Airlines, Inc. v. Thurston, 469 US. 111, 125-30, 105

— ee 83 L.Ed.2d 523 (1985)). We agree with the district

pe te —— that “the proof demonstrate[s] [that IBP}

a y isregarded the possibility that [it] was violating

LSA.” Herman, 172 F.3d at 141 (emphasis added)

An examination of the record veri

ex erifies the propri

oe court’s conclusion. IBP was on no >

aa requirements, yet took no affirmative action to

ure compliance with them. To the contrary, IBP’s actions

may o properly be characterized as attempts to evade

= lance, or to minimize the actions necessary to

re lieve compliance. IBP “could easily have inquired into”

meaning of the relevant FLSA terms and the type of

: ri necessary to comply therewith. Herman, 172 F.3d at

. It failed to do so. The district court appropriately

lied § 255° - imitati

~ § sag three-year statute of limitations to IBP’s

Vil

The district court did not err in awarding li uidat

— under the FLSA, a decision we satay tee > of

oe See Local 246 Util. Workers Union v. S. Cal

Edison Co.. 83 F.3d 292, 298 (9th Cir.1996). For violations of

LSA’s minimum and overtime wage provisions

employers “shall be liable to the . . . employees affected in

the amount of te Overtime compensation, as the case may be

> : an additional equal amount as liquidated damages.” 29

S.C. § 216(b) (1999); see Overnight Motor Transp. Co. v

Missel, 316 U.S. 572, 583-84, 62 S.Ct. 1216, 86 L.Ed 1682

(1942) (observing that FLSA liquidated damages are not

Cc .

ry 7 ml s pr say a roy International Union

Local . Coun San Diego, 3d 1346 (9th Cir.1994), j

inapposite because i i dun

— : the record in that case did not reflect any knowing or

24a

penalties exacted by law, but, rather, compensation to the

employee occasioned by the delay in receiving wages due).

Under 29 U.S.C. § 260, courts need not award liquidated

damages in every instance; instead, courts retain discretion to

withhold a liquidated damages award, or to award less than

the statutory liquidated damages total, where an employer

shows that, “despite the failure to pay appropriate wages, the

employer acted in subjective ‘good faith’ and had objectively

‘reasonable grounds’ for believing that the acts or omissions

giving rise to the failure did not violate the FLSA.” Herman,

172 F.3d at 142; see 29 C.F.R. § 790.17(i) n.110 (1999)

(observing that an employer’s inability to satisfy § 259 does

not preclude a court from finding that the employer met

§ 260’s terms).'”

To satisfy § 260, a FLSA-liable employer bears the “diffi-

cult” burden of proving both subjective good faith and

objective reasonableness, “with double damages being the

norm and single damages the exception.” Herman, 172 F.3d

at 142 (citing Reich v. S. New Eng. Telecomm. Corp., 121

F.3d 58, 71 (2d Cir.1997)); see also Dole v. Elliott Travel

& Tours, 942 F.2d 962, 968 (6th Cir.1991). Where the

employer “fails to carry that burden,” we have noted,

“liquidated damages are mandatory.” Local 246, 83 F.3d at

297 (citations omitted).

IBP “failed to take the steps necessary to ensure[its] [ |

practices complied with [FLSA].” Herman, 172 F.3d at 142.

'? Section 260 provides in relevant part:

In any action . . . to recover unpaid minimum wages, unpaid

overtime compensation, or liquidated damages, under the [FLSA], if

the employer shows to the satisfaction of the court that the act or

omission giving rise to such action was in good faith and that he had

reasonable grounds for believing that his act or omission was not a

violation of the [FLSA], the court may, in its sound discretion,

award no liquidated damages or award any amount thereof. . . .

29 U.S.C. § 260 (1999).

25a

Mistaking ex post ex i j

t explanation and justification for the

necessary affirmative “steps” to ensure compliance, IBP

ier pe oe Instead, it reiterates the value of its

oe pe of USDOL litigation Strategy, and of its four-

aa p lance plan. IBP’s efforts do not constitute

dence of taking the steps necessary to ensure FLSA

Fey “ry and, without such evidence, we cannot Say that

court abused its discretion in awarding liqui

damages. See Cox, 919 F 2d at Ne

Cox, ; 357 (“{Even findi

-- employer did not act willfully does not mar ne

of liquidated damages.”) (citation omitted).

Vill

ona court rejected IBP’s contention"? that it was

1p from the State of Washington’s overti

provisions because j ithi r pin

—_ use it fell within the “agricultural worker”

ption to those Provisions, which provides that the

Overtime provisions do not apply to:

individual{s] employed (i) on a f, i

arm, in the employ of

- ype in connection with the cultivation of the Soil

ha connection with raising or harvesting an

agricultural or horticultural commodity, including nies

, ,' j issue by raising it only i

pretrial motion for summary judgment. In generally, we a te tea

summary

my 1359 (9th Cir.1987), but i

» Judgment was entered fler i i

poem dag after a bench trial and the issue on appeal is

14 . ° P

oe panes. aa s baseline overtime-wage Provision, Wash. Rev.Code

_ ( ), reads in pertinent part: “[N]o employer shall . lo

me 's employees for a work week longer than forty hours unless sac,

ee mye compensation for employment in excess of the hours

spec at @ rate not less than one and one-half times the regular

26a

ing, shearing, feeding, caring for, — oe

management of livestock, bees, poultry, = pes e

animals and wildlife, or in the employ of the oped

tenant or other operator of a farm in connection oo -

operation, management, conservation, improvem ad -

maintenance of such farm and its tools and equips *

or (i) in Packing, Pe rket or to°a carrie for

ivering to storage, 0

ratrancver. Fa to amet any agricultural or ee

commodity; or (iii) commercial canning, anager =

freezing, or any other commercial processing, Ang

respect to services performed in connection y to

cultivation, raising, harvesting, and npg - —

or in connection with any agricultural - 0 “~ +

commodity after its delivery to a termina! mar

distribution for consumption. . . .

Wash. Rev.Code § 49.46.130(2)(g) (1999).

As the district court observed, “[t}his subsection =

applies to farm employment, and under no oO Cc =

IBP’s plant be deemed a farm.” However, the distric . :

acknowledged that some of the language in the subsec on

could be subject to a broader construction. However, .

the statutory context, the consistent ae ge : be

section by the Washington Department 0 nap Bac

Industries (“WDLI”), and Washington case law, ; e as

court concluded that the agricultural exemption di re wy

to the Pasco plant workers. Rather, the distric

concluded that, for purposes of applying the yo

“(t]he bright line is when an agricultural aged a ~

marketed, ie, conveyed by someone who rai ..

someone who did not.” (Emphasis in district = or »

Given the statutory and regulatory context, as we . He

principles of statutory construction governing this - ee

announced by the Washington Supreme Court, t A aa

court did not err in assessing how the Washington Sup

Court would decide the issue.

27a

Under Washington law, statutory “meaning is [to be]

discerned from all that the Legislature has said in the statute

and related statutes which disclose legislative intent about the

provision in question.” Dep't of Ecology v. Campbell &

Gwinn, L.L.C., 146 Wash.2d 1, 43 P.3d 4, 10 (2002) (En

Banc). In particular, the Washington Supreme Court has

directed courts construing the WMWA to heed the “terms and

spirit” of the Act overall and of the individual exemption at

issue. Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d

291, 996 P.2d 582, 587 (2000). The “spirit” of Washington’s

labor code is plainly employee-protective. Washington’s

“long and proud history of being a pioneer in the protection

of employee rights,” id. at 586, has, through the years,

manifest in “a strong policy in favor of payment of wages due

employees [and in] a comprehensive [statutory] scheme to

ensure [such] payment.” Jnt'l Ass'n of Fire Fighters, Local

46 v. City of Everett, 146 Wash.2d 29, 42 P.3d 1265, 1267

(2002) (second alteration in original; internal quotation marks

omitted). The “spirit” of Revised Code of Washington

§ 49.46.130(2)(g), in turn, is substantially narrower than IBP

Suggests, aiming to exclude from WMWA’s protections only

those individuals employed in agriculture or horticulture

during the relatively short harvest season. As in the FLSA

context, we must construe exemptions to the WMWA

narrowly such that only contexts “plainly and unmistakably

consistent with the terms and spirit of the legislation” fit

therein. Jd. The individual plaintiffs do not “plainly and

unmistakably” fall within § 49.46.130(2)(g)’s ambit.

To the extent that the statute contains ambiguity, we agree

with the district court that the Washington Supreme Court

would likely afford deference to the state agency’s inter-

pretation. Under Washington law, deference is owed the state

agency interpretation of a state statute that the agency

enforces, “if the law being interpreted is within [that]

agency’s expertise.” Budget Rent A Car Corp. v. Wash.

Dep't of Licensing, 144 Wash.2d 889, 31 P.3d 1174, 1180

28a

(2001) (En Banc). In this case, the district court attached

significance to the WDLI policy that the agricultural worker

exemption does not apply to employees in commercial

processing of any agricultural commodities grown or raised

by another. Several WDLI officials testified as to this policy,

and a 1997 enforcement letter from WDLI declares that the

statutory exemption “should be strictly and narrowly

construed to exempt” only workers performing labor

“immediately necessary to complete the successful operation

of the agricultural/horticultural enterprise.” Although this

policy interpretation does not bind us, it provides an

additional persuasive indication of how the Washington

Supreme Court likely would decide the question.

Thus, in view of the principles of statutory construction

applicable under Washington law, the district court did not err

in determining that the Washington Supreme Court would

likely hold that the agricultural exemption is inapplicable to

the IBP packing plant employees."

The .Washington Minimum Wage Act, like the FLSA,

requires employers to compensate employees at, at least, a

minimum wage rate. See Wash. Rev.Code § 49.46.020

(1999). Some courts have held that, under the FLSA, an

employee’s right to recover minimum wage accrues each

workweek, not by individual hour. See Dove v. Coupe, 759

F.2d 167, 172 (D.C.Cir.1985); see also 29 U.S.C. § 206(a)

(1999) (“Every employer shall pay [a minimum wage] to

each of his employees who in any workweek is engaged in

'S We need not address whether federal law preempts application of

Washington state law in this case, for IBP did not properly raise this

preemption argument on appeal. See Devereaux v. Abbey, 263 F.3d 1070,

1079 (9th Cir.2001) (“As a general matter, *[w]e review only issues which

are argued specifically and distinctly in a party’s opening brief.’”’)

(citation omitted, alteration in original).

29a

commerce or in the production of goods for commerce. . . .”)

We must determine whether the WMWA similarl rovid .

only a right to minimum wages based on a aie *k

standard or whether, in contrast, employees retain a aia

right to minimum wage under Washington law. skeos

Washington state courts have i

yet to determine wheth

— like plaintiffs, have a per-hour or a ro

— right to minimum wage. See Seattle Prof’l Eng'g

6 4 — hee n (“SPEEA”) v. Boeing Co., 92 Wash.App

. .2d 204, 225 (1998) (express! si “ad .

y refusing to “ad

whether compliance with the WMWA should i ccteeten

ey : grog basis”), as amended by 92 Wash.App

2d 204 (1998) (same). The district court

j ; strict court

concluded that Washington courts were “likely” to adopt ie

per-hour standard for hourly employees. We agree.

Pe og = = rales bases for its conclusion.

which is contained in the inna ees af ‘oe BA

Second, the district court drew significance from the fa t

that, in SPEEA, the trial court used a per-hour measure me

the Washington Supreme Court refused to criticize this aspect

of the trial court’s methodology. Third, it deferred > te

WDLI interpretation that, for hourly workers, the WDLI

employs the per-hour standard fi mi

or determ ni

wage compliance. ining minimum

We believe the district court’s analysis ji

Regulations interpreting the WMWA an dealt oitin te

this regard. Repeatedly listing “hourly” employment 4 a

gon employment type, these regulations permit use of

the work-week measure only for particular employment

nape See, e.g., Wash. Admin. Code § 296-128-550

= 999); id. § 296-126-021 (1999); id. § 296-126-010 (1999)

ere the Washington legislature disposed to apply the

workweek measure to hourly employees, it could have done

SO as expressly as it did vis-a-vis other employment types

30a

And were the workweek measure to be generally and

necessarily applicable, the Washington legislature’s specifica-

tion of the workweek standard for, e.g., commissioned

employees would be both extraneous and redundant.

Given this statutory and regulatory background, the district

court quite reasonably predicted that the Washington

Supreme Court would construe the WMWA as using a per-

hour standard for hourly employees.

In unequivocal terms, Wash. nee tn § rye ate

ires that “fe]mployees shall be allowed a meal pe

at least 30 Pan Wash. Admin. Code § 296-126-092(1)

(1999). Such “meal period{s]” are to “commence[ | no less

than two hours nor more than five hours from the beginning

of [an employee’s] shift,” and such meal periods “shall be

on the employer’s time—i.e., shall be paid— when the

employee is required by the employer to remain on duty pe

the premises or at the prescribed work site in the interest 0

the employer.” /d.

WDLI, appearing as an amicus curiae, asserts that Wash.

Admin.Code § 296-126-092 evinces a “clear, ‘bright-line

standard”: it requires employers to provide meal-breaks of at

least 30 minutes,” and it demands that employers interrupting

meal-breaks “pay for the entire meal break, regardless of the

length and the number of the work-interruptions or

curtailments.” Cf. Brennan v. Elmer's Disposal Serv., Inc.,

510 F.2d 84, 88 (9th Cir.1975) (“An employee cannot be

docked for lunch breaks during which he is required to

continue with any duties related to his work.”). The district

court construed this provision as compensating a particular

employee only for minutes lost if that employee lost less than

or as many as ten minutes of his or her meal-break time to

work duty, and awarding compensation for the full thirty-

minute term only where an employee lost more than ten

3la

minutes of his or her meal-break time to work duty. Cf. 29

C.F.R. §§ 785.18 & 785.19 (1999) (permitting employers to

reduce meal-breaks to twenty minutes under “special

conditions”; specifying the thirty-minute rule as one that need

only “ordinarily” be followed); S. New Eng. Telecomm.

Corp., 121 F.3d at 63-65 (applying § 785.19 in a “practical

manner”); see also Roy v. County of Lexington, 141 F.3d 533,

544-45 (4th Cir.1998) (adopting a “predominant benefit” test

in assessing meal-break claims under FLSA).

Although perhaps consistent with the FLSA, the district

court’s interpretation conflicts with the terms of the manda-

tory language of Wash. Admin. Code § 296-126-092. Unlike

the correlative FLSA provisions, which permit truncation of

the thirty-minute period in certain contexts, see 29 C.F.R.

§§ 785.18 & 785.19 (1999), neither Wash. Admin. Code

§ 296-126-092 nor its interpretative guides permit any

mitigation of the section’s mandatory thirty-minute duty-free

directive. See Wash. Admin. Code § 296-126-092(1) (ex-

pressly noting that employees “shall be allowed” a thirty-

minute meal-break); see also Wash. State Liquor Control Bd.

v. Wash. State Pers. Bd., 88 Wash.2d 368, 561 P.2d 195, 200

(1977) (En Banc) (“[A]s a general rule, the use of the word

‘shall’ in a statute is imperative and operates to create a

duty. ...”). Without reference to or acceptance of the kind of

“special circumstances” posited in 29 C.F.R. § 785.19, Wash.

Admin. Code § 296-126-092(1) requires “a meal period of at

least 30 minutes.” /d. No intrusions on this thirty-minute

period are condoned or even acknowledged; indeed, WDLI’s

most recent evaluation of this provision notes that “{i]f the

meal period should be interrupted due to the employee’s

performing a task . . . [t]he entire meal period must be

paid without regard to the number of interruptions.” Wash.

State Dep’t of Labor and Indus., Administrative Policy

ES.C.6 (2002), available at http://www.lni.wa.gov/scs/work

standards/policies /esc6.htm.

32a

The plain words of the statute buttress WDLI’s interpreta-

tion, and we owe WDLI’s construction deference under

Washington law. Wash. State Liquor Control Bd., 561 P.2d

at 200 (“The construction of a rule by the agency which

promulgated it is entitled to great weight.”); Drinkwitz, 996

P.2d at 591 (discussing Washington’s “long and proud history

of being a pioneer in the protection of employee rights ).

Under Wash. Admin. Code § 296-126-092, plaintiffs are

owed compensation for the full thirty-minute period where

IBP has intruded upon or infringed the pom ee —

inute term to any extent. We thus reverse the district court s

prs to Art its Wash. Admin. Code § 296-126-092

award, and we remand for recalculation of damages consis-

tent with this full thirty-minute remuneration approach.

As the Supreme Court noted in Mt. Clemens, a court may

“award damages to [an] employee, even though the [award]

be only approximate.” 328 U.S. at 688, 66 S.Ct. 1187.

Heeding Mt. Clemens “approximate” term, the Tenth Circuit,

in Reich, affirmed a damage award based on “reasonable

time” measures where “differences in personal routines

occurred at the end of [a] shift.” 38 F.3d at 1127.

Charting a similar course, the district court attached “the

compensable time for each activity [ ] [to] the basis of a

reasonable time, rather than the actual time required for each

activity.” The use of reasonable time in this instance was

within the district court’s discretion. Mt. Clemens, 328 U.S.

at 687-88, 66 S.Ct. 1187; see Reich, 38 F.3d at | 127; Skipper

v. Superior Dairies, Inc., 512 F.2d 409, 420 (Sth Cir.1975).

First, we respectfully disagree with the plaintiffs’ read of

the district court’s damage and time analyses. The district

court did not make “actual” time findings only to disregard

them, and district court did not rely on a misconception of the

concept of “work.” We do not disagree with plaintiffs, of

33a

course, that the definition of “work” is not fixed, in most

instances, to an objective measure of “reasonableness.” See

Brock v. City of Cincinnati, 236 F.3d 793, 802-03 (6th

Cir.2001); Holzapfel v. Town of Newburgh, 145 F.3d 516,

522-24 (2d Cir.1998). But we cannot agree with the

plaintiffs” use of this thesis here. In arguing that the district

court misunderstood “work,” plaintiffs conflate a determina-

tion that a “reasonable” time sufficed for damage calculation

where myriad internal “differences” permeated a class-wide

award with a determination that a specific plaintiff's “work”

was not itself “reasonable.” The district court made the

former, but it did not make the latter; that is, the district court

did not conclude that any particular plaintiff's “work” was

unreasonable or inherently non-compensable. Cf. Holzapfel,

145 F.3d at 524. Rather, the district court adopted—as the

Tenth Circuit dic in Reich—a compensation measure based

on a “reasonable” quantification of plaintiffs’ work time,

thereby avoiding countless individual plaintiff-specific

quagmires while directing the parties to individualize the

damage measure to the extent possible nevertheless.

Second, the district court’s approach is consistent with

our settled case law. We have approved “approximate[d]”

awards where plaintiffs can establish, to an imperfect degree

of certainty, that they “ha[ve] performed work and ha[ve] not

been paid in accordance with the [FLSA].” Brock v. Seto, 790

F.2d 1446, 1448 (9th Cir.1986) (internal quotation marks

omitted; final alteration in original). In such instances, “(t}he

only uncertainty is the amount of damage,” not the fact that

damages are due. /d. Where an “approximate [ ] award based

on reasonable inferences” forms a satisfactory surrogate for

unquantified and unrecorded “actual” times, an approximated

award is permissible. /d. at 1449. The district court’s

compensation framework adheres to this test.

We recognize, of course, that approximated time and

reasonable time are not synonymous categories. As the

34a

courts in Holzapfel and Brock suggest, in certain contexts,

“individual traits and needs of [each employee] [may]

preclude any easy determination as to what is a ‘reasonable

time.’” Holzapfel, 145 F.3d at 526; see Brock, 236 F.3d at

802. In contexts in which work tasks are not uniform and are

less subject to dilatoriness, that which is “approximate” may

not always be “reasonable.” But the nature of the work at

issue in this case, and, notably, the relatively uniform tasks

performed by plaintiffs, conduce to the kind of analysis

performed by the district court, and the district court did not

abuse its discretion in its damage calculation.

XII

IBP contends that the district court erred in holding

that there was an implied cause of action for violation of

Wash. Admin. Code § 296-126-092 in Wash. Rev.Code

§ 49.12 (1999). However, after briefing of this appeal, the

Washington Supreme Court held that an implied private right

of action did exist under the statute, thus foreclosing this

argument. See Wingert, 50 P.3d at 261.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in

part the judgment of the district court. We remand for

recalculation of damages. Each party to bear their own costs.

AFFIRMED in part; REVERSED in part, REMANDED.

35a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

[Filed Sep 14, 2001]

No. CT-98-5005-RHW

GABRIEL ALVAREZ, et. ai.,

Plaintiffs,

Vv.

IBP, INC.,

Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Trial to the bench commenced on September 27, 2000 and

concluded on October 27, 2000. A hearing on objections to

the Court’s proposed findings and conclusions was held on

July 27, 2001. An order on objections was issued on August

2, 2001. A hearing on the rest break claim was held August

29, 2001. Throughout this action, Plaintiffs were represented

by William Rutzick, Kathryn Goater, and David Mark:

Defendant by Douglas Smith, Barbara Duffy, Nancy

Anderson, and Sarah Haushild. This constitutes the Court’s

final findings and conclusions i

nal required by Federal R

Civil Procedure 52(a). , —

BACKGROUND

This is a class action brought under the Fair Labor

Standards Act (“FLSA”) and related Washington state laws

by production line workers at IBP’s Pasco, Washington plant

seeking compensation for unpaid activities prior to the arrival

of the first piece of meat, during the unpaid “30-minute” meal

break, and after the last piece of meat.

36a

A. The Pasco Plant

IBP owns and operates a beef slaughter and processing

plant in Pasco, Washington (“the Pasco Plant”). The class

members engaged in production line work in two different

sections of IBP’s Pasco Plant: the Slaughter and Processing

divisions. Cattle are es and —— ~~ eo

ucts while moving along

pinned ore in the Slaughter Division. After that, the

carcasses are stored in a cooler for at least 24 hours, then

wend their way along a chain and moving belts through the

Processing Division, where they are further processed. Each

worker on the processing line typically performs one or two

discrete operations in a disassembly line process.

The Slaughter Division runs one shift beginning opera-

tions at 6:30 am. A standard slaughter division crew is

approximately 178 employees, with approximately 113 job

classifications’. The Processing Division runs an A shift that

starts at 5:45 a.m., and a B shift that starts at 3:15 p.m. These

shifts have a combined crew of approximately 800 line

workers, with approximately 145 job classifications. On the

processing line there are eight processing belts, each dropping

carcasses onto a line. Each line is a separate department, with

25-40 employees working side by side. At the end of each

line are two to five packaging department employees, who

bag pieces of meat. There also are two departments located

on the side of the processing floor: the hamburger department

and the bones department.

B. Gang Time Pay

Employees at the Pasco plant are paid on a gang time basis,

which means pay is based on the time that employees are

‘The job classifications focus on the particular cut emplo

makes. Many classifications are staffed with multiple workers, and

workers who work alongside each other on the same line, using virtually

the same equipment, will have different classifications.

37a

cutting and bagging meat. Pay begins with the first piece of

meat and ends with the last piece of meat. IBP posts the

scheduled start of the shift. However, it does not post the

times that workers are required to be at their specific lines

and work locations, which vary depending on the work

location. IBP superintendents did not know what times

employees were required to be at specific work locations.

Employees expressed confusion about start times. Employees

clock-in and out using a swipe card at the beginning and end

of each day. The system records the clock-in and out times,

but these are not used to determine pay.

Since October 1995, slaughter division employees have

been eligible for “sunshine pay” for the “time by which a

shift’s scheduled hours exceed the killout time of the’

scheduled number of head.” Sunshine pay “is possible whe:

downtime is minimized during the shift and/or where cha:-:

speed is increased.” (Exhibit 73a.) Suashine pay is extra

compensation for working more efficiently and more quickly.

C. Bargaining History

The majority of the workers at IBP’s Pasco plant are

Hispanic and are represented by Teamsters Local Union

No. 556, affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen, and Helpers of

America (“the Teamsters”), under a series of collective

bargaining agreements between the Teamsters and IBP. The

1976 collective bargaining agreement between Local 556 and

Columbia Foods included 30 minutes per week for “clothes

changing.” (Ex 216.) IBP purchased the Pasco operation from

Columbia Foods in the late 1970’s and a similar provision

was included in the first collective bargaining agreement

between IBP and Local 556 in 1979. (Ex. 217.) In 1982,

“clothes changing” time was removed from the collective

bargaining agreement. (Ex. 218.) In 1982, 1986, and 1992,

“clothes changing time” was negotiated and left out. In 1999,

38a

clothes changing and clean-up time were negotiated and left

out again.

D. DOL Litigation

IBP also operates a number of non-union plants. The

United States Department of Labor (“DOL”) was involved in

ongoing litigation involving 11 of IBP’s non-union plants.

The courts decided the damages and injunction issues in

Reich v. IBP, 3 Wage & Hour Cases 2d 324 (D. Kan. 1996); 3

Wage & Hour Cases 2d 863 (D. Kan. 1996). (Ex. 221.) IBP

was held liable for 14 minutes per shift back pay to knife

users and was permanently enjoined to comply with the

FLSA at its non-union plants. The courts also held IBP liable

for unpaid pre-shift and post-shift donning, doffing, and

cleaning of special packinghouse industry safety equipment

and for the time between waiting to pick up and return

knives, which were held to be the first and last activities

of the work day. Reich v. IBP, Inc., 38 F.3d 1123 (10th

Cir. 1994).

In December 1997, IBP received a copy of a 29 U.S.C.

§ 203(0)° opinion letter issued by the Administrator of the

Wage and Hour Division of the United States Department of

Labor. The Administrator concluded that donning and doffing

packinghouse protective equipment was not § 3(0) “changing

clothes,” because this type of equipment wes not clothing. He

also cited language from the legislative history indicating that

Congress intended § 3(0) “washing” to refer to washing the

person, not equipment washing. (Ex. 64.) In April 1998, the

Department of Labor filed a second suit seeking back pay for

229 U.S.C. § 203(0) creates an exclusion from compensable time for

time “spent in changing clothes or washing at the beginning or end of

each work day which was excluded from measured working time during

the week involved by the express terms of or by custom or practice under

a bona fide collective-bargaining agreement applicable to the particular

employee.”

39a

post-Reich violations at IBP’s non-union plants. Herman vy.

IBP, Inc., 98-CV-2163-JWL (D. Kan.) (Ex 237.) This is when

IBP began to pay 4 minutes per day for pre- and post-shift

activity at its non-union plants.’

Prior to July 1998, IBP scheduled 8-hour shifts, plus a 30-

minute unpaid meal break at the Pasco Plant. In July 1998,

IBP started paying production line workers 4 minutes of

“clothes” time and reduced the shift to 7 hours and 56

minutes. In the fall of 1999, the company reduced the shift to

7 hours and 51 minutes, plus a 30-minute meal break and 4

minutes of “clothes changing time.”

E. Pre- and Post-Shift Activities

Employees are required to wear a variety of outer garments

and personal protective equipment. IBP documents describe

Minimum Safety Equipment” requirements. (Ex. 90-93.) All

employees are required to wear a sanitary outer garment

provided by IBP. IBP launders the outer garments each night.

All employees are required to use a plastic hard hat, a hair

net, and ear plugs. All employees, except those in the

slaughter division gutter job, are required to wear either

safety glasses or a face shield. The vast majority wear safety

glasses. IBP requires employees to clean and store equipment

and tools in a company-provided locker at the end of each

shift. There are four locker rooms, ome each for men and

women in the slaughter division and in the processing

division. “Knife users” are required to wear a variety of

protective equipment for the hands, arms, torsos, and legs.

This includes “wire mesh,” which is chain-linked metal.

Mesh items include aprons, aprons with leggings, vests,

’ IBP claimed to have reduced the compensable time from 14 minutes

to 4 minutes by moving knife distribution and by installing additional

equipment washing sinks to reduce waiting time. In late 1998 and early

1999, IBP and DOL negotiated and agreed to 4 minutes of compensation

at the non-union plants for pre- and post-shift activities.

40a

sleeves, and gloves. Employees also use puncture-resistant

protective sleeves and Kevlar gloves, also referred to as

“can’t cut” or “Polar” gloves. Knife users also wear

plexiglass arm guards on one or both arms. Employees also

wear other gloves. In the processing division, employees

wear yellow cotton gloves. These gloves facilitate gripping

knives or other tools and provide warmth.” Some slaughter

division employees also wear yellow cotton gloves. Slaughter

division employees typically also wear rubber and/or plastic

gloves. These facilitate grip and protect against blood and

water saturation. Employees also wear liquid repelling

sleeves, aprons, and leggings, including yellow plastic

sleeves, clear plastic sleeves, clear plastic leggings, and

rubber aprons. Saw operators and some packaging employees

also wear these items. Employees also wear safety shoes or

boots, which must be wiped off or hosed down after each

shift. Many employees also wear weight belts to prevent back

injuries. Employees also are assigned various equipment; for

example, steels are assigned to employees who use knives.

Slaughter employees begin their day by picking up sup-

plies at the supply room, then go to the locker room, whefe

- they retrieve their assigned protective equipment, steels, and

tools. Most slaughter employees don most of their safety

equipment in the locker room. After leaving the locker room,

they proceed toward the slaughter floor. Once on the

slaughter floor, many go to the knife room to receive

sandpaper for sanding steel. There are four or five knife

distribution points on the slaughter floor, although some

employees pick up knives at the knife room. Knife users sand

their steel, and air knife users wipe and wash grease from the

air knife prior to using it. Employees are required to be at

their work stations and ready to work on the first cow or meat

as it arrives.

‘ The processing floor is between 38 and 42 degrees Fahrenheit.

4la

On the processing side, employees must line up to get their

frocks and go to the locker room. They obtain safety

equipment and tools, which IBP requires be stored in the

lockers, and then proceed to the processing floor. Much of the

pre-shift routine for processing surrounds the distribution of

glove pins with yellow cotton gloves, and protective sleeves

and gloves.

Employees receive a 15-minute paid rest break after 2

hours of line operation, and a 30-minute unpaid meal break

after approximately another 2 hours of line operation. Breaks

begin when employees receive their last piece of meat and

end when employees receive their next piece of meat. During

the meal breaks, employees must remove certain equipment

to go to the cafeteria or to use the restroom. IBP strongly

encourages employees to use the restroom during the unpaid

meal break and permits such use during work periods only on

an emergency basis. Other workers must do the work of

the absent worker, making use of the restroom inconvenient

for other workers. A majority of employees use the restroom

during the meal break. IBP requires employees to remove

most equipment prior to entering the restroom.’ Workers

are required to remove outer garments, gloves, scabbards,

and chains prior to entering the cafeteria. IBP requires

employees to be back at the work station and ready to work

on the first piece of meat with their equipment on at the end

of the meal break.

After their last piece of meat, workers must clean their

equipment and return their equipment to the supply room and

to their lockers. There are wash stations located throughout

the slaughter floor. Most workers hose down and scrub

aprons, sleeves, rubber gloves, and boots. Knife users return

the knives to collection boxes. Workers return soiled protec-

* Employees do not have to remove hard hats, hairnets, earplugs, safety

glasses, and boots to enter the restroom.

42a

tion gloves and sleeves as well as cotton gloves to the supply

window. Processing workers clip their soiled gloves and

protective sleeves onto their glove pin and return them. Knife

users put the knives in buckets that are passed along the

production lines. Washable protective equipment and some

tools need to be washed at equipment wash sinks, including

scabbards, chains, mesh gloves, steels, plastic sleeves, aprons,

meat hooks, scissors, and boots.

CLAIMS AND DEFENSES

A. Uncompensated Activities

This case involves unpaid activities prior to the first piece

of meat, during the unpaid “30-minute” meal break and

second rest break, and after the last piece of meat, under the

FLSA, 29 U.S.C. §§ 206 and 207, and the Washington

Minimum Wage Act, RCW 49.46.010 et seq., RCW 49.12 et

seq., RCW 49.52 et. seq.

Most workers begin the work day in the locker room by

donning safety equipment. They then engage in a variety of

additional activities prior to the start of the paid work day,

such as sanding the steel used by knife users to sharpen

knives, retrieving cloth gloves, protective gloves, and

protective sleeves that are laundered each night, and var ous

other preparatory activities. During the 30-minute unpaid

meal break employees are required to doff and hang up the

safety equipment they are wearing before they can begin to

use the break as their own time. They also are required to don

the equipment and be back at their work stations ready to

begin cutting meat at the end of the 30-minute break. After

working on their last piece of meat, the workers are on the

production floor and are required to wash their equipment and

doff and store their equipment upon returning to their lockers.

43a

B. Union Negotiations of Clothes Changing Time

IBP urges that 29 U.S.C. § 203(0) permits private negotia-

tions between unions and meat industry employers as to

whether to include such pre- and post-shift activities in their

employees’ paid work time. There was a provision for clothes

changing time in the Collective Bargaining Agreement at

IBP’s Pasco Plant for the year 1976 and for the years 1979-

1982, but such a provision was eliminated in 1982 and

renegotiated and left out in 1992. IBP argues that it relied on

the collective bargaining agreements in effect at the Pasco

Plant during the relevant time periods, which excluded

clothes changing time, and that those agreements prevent

Plaintiffs from asserting these claims, as the Union had

bargained away these rights on behalf of the employees.

C. IBP’s Reliance on DOL

IBP was involved in litigation with the Department of

Labor (“DOL”) regarding similar pre- and post-shift activities

at its non-union plants. IBP urges that it relied on DOL’s

exclusion of union plants in this litigation to conclude that

clothes changing time was not compensable at union plants.

IBP claims it is entitled to this reliance under 29 U.S.C.

§ 259(a). As a result of this litigation, IBP came to a nego-

tiated settlement with DOL of 4 minutes for clothes changing

time at its non-union plants. IBP argues that when the DOL

indicated in December 1997 that clothes changing may be

compensable at union plants, IBP, although concluding that

the DOL was wrong, changed its policy to comply with IBP’s

4-minute compensation policy at non-union plants. Starting

on July 30, 1998, IBP began to pay its union employees at the

Pasco Plant an extra 4 minutes per day compensation for

clothes changing.

D. Other Claims Re: Noncompensability

IBP also claims that these pre- and post-shift activities are

not compensable under the Portal to Portal Act, 29 U.S.C.

44a

§ 254(a) because they are not integral and indispensable to

the employees’ performance of their jobs.

IBP argues further that the meal break time A ?

compensable because it is primarily for the benefit of the

employees.

Finally, as to the state law overtime claims, IBP argues =

Washington law is to be interpreted consistently with : -

FLSA and because, they argue, the pre-and post-s -

activities are not compensable under the FLSA, they shou

not be compensable under Washington law. IBP also argues

that the Washington Supreme Court’s decision in or

adopts a weekly standard for minimum wage compliance and,

therefore, absolves IBP of overtime liability under state law.

DISCUSSION

I. Jurisdiction

The Court has jurisdiction over the class members’ FLSA,

29 U.S.C. §§ 201-219, claims under 29 U.S.C. § 216(b) and

28 U.S.C. § 1331.

jurisdicti the class

The Court has supplemental jurisdiction over

members’ state law claims under the MWA, RCW —

49.46, and related exemplary damage claims under RC

chapter 49.52, pursuant to 29 U.S.C. § 1367.

The class members’ employment at the Pasco plant has

been part of an enterprise engaged in commerce and in the

production of goods for commerce, as these terms are used 2

Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206-07, and IB

is, therefore, subject to the overtime provisions of 29 U.S.C.

§ 207. |

IBP is an employer for purposes of RCW chapter 49.46 in

that it is a corporation acting as an employer in relation to an

employee. See RCW 49.46.010(4). IBP is, therefore, subject

to the requirements of the MWA, RCW chapter 49.46.

45a

Il. The Class

The class has been certified as a §16(b) FLSA, 29 U.S.C.

§ 216, opt-in class, as follows:

All IBP processing or slaughtering division employ-

ees at defendant’s Pasco, Washington plant from June

30, 1995 to [August 24, 1999], but specifically exclud-

ing all supervisors, managers, quality control employees,

guards, mechanics, laundry room employees, janitors,

knife room employees, rendering employees, and

packing employees who perform work away from the

production lines.

Pretrial Order (Ct. Rec. 102).

Tne Court finds that the hides division is separate from

both the processing and slaughter divisions and, therefore,

employees working solely in the hides division are not

members of this class. Both the superintendent of the kill

floor and the superintendent of “A” shift processing testified

that hides is a separate division from processing and

slaughter. The hides division is located off the kill floor and

the processing floor, and hides employees are not allowed to

“bid” on jobs in either processing or slaughter. A hides

division employee testified that neither the superintendent of

processing nor the superintendent of slaughter was his boss

and that he does not work in the slaughter area. The class is

comprised of 815 slaughter and process division employees,

who opted in pursuant to the procedure Stipulated to by the

parties and approved by the Court. (Ex. 266, 341, 253(a).)

IBP has requested reconsideration of class certification

based on the difficulty in calculating damages. Again, this is

based on a misunderstanding of the Court’s findings, and an

attempt to distort the concept of individualized damages. The

Court is requiring individualized damages calculations in an

over-abundance of caution to the Defendant. The Court could

have determined that the evidence was sufficient to permit a

46a

more generalized damages calculation, but because the

evidence and testimony permitted a more discrete determi-

nation as to timing by job description, equipment list, and

activities testified to, the Court determined that this

calculation would lead to a recovery that relates to what work

was actually performed. Defendant's objection is denied,

based on the findings of adequate representative evidence.

Ill. Representative Evidence

The use of representative evidence is well accepted for

determining liability in FLSA cases. See Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680 (1946). The Second

Circuit explained the principles of representative evidence in

Reich v. Southern New England Telecomms., 121 F.3d 58,

66-67 (2nd Cir. 1997) in the following way:

When a defendant in a suit for lost wages under the

FLSA fails to maintain employment records as required

by the Act, an employee... may submit sufficient

evidence from which violations of the Act and the

amount of an award may be reasonably inferred.

.. . In meeting the burden under Mt. — =

need not present testimony from

sadopald employee; ow it is well-established that the

Secretary may present the testimony of a representative

sample of employees as part of his proof of the prima

facie case under the FLSA. See Reich v. Southern

Maryland Hosp., Inc., 43 F.3d 949, 951 (4th Cir. 1995);

Reich v. Gateway Press, Inc., 13 F.3d 685, 701-2 (3d

Cir. 1994).

The burden originally is on the employees to demonstrace

with sufficient evidence that the employees have, in fact,

performed work for which they were improperly compen-

sated, and to produce sufficient evidence to show the amount

and extent of that work “as a matter of just and reasonable

inference.” Mt. Clemens, 328 U.S. at 687. The burden then

shifts to the employer, and if the employer fails to produce

47a

“evidence of the precise amount of work performed or

evidence to negative the reasonableness of the inference to

be drawn from the employee’s evidence... . [t]he court

may then award damages to the employee[s], even though

the result be only approximate.” Mt. Clemens, 328 U.S. at

687-88.

A. IBP’s Records Are Inadequate

The representative evidence standard set forth in Mt.

Clemens applies here since IBP failed to maintain employ-

ment records of pre- and post-shift work, as required by the

FLSA. See Southern New England Telecomms., 121 F.3d at

66-67. The testimony was that IBP does not require

employees to clock-in before donning protective equipment at .

the beginning of the day or at the end of lunch breaks, and

does not have employees wait until after doffing such

equipment to clock-out. While employees do clock-in and

out, IBP does not use those records to determine hours

worked, nor does IBP require when clock-ins or clock-outs

occur. Thus, the clock-ins and clock-outs are not an

indication of the precise amount of work performed. Some

employees clock-in when they arrive at the plant, while some

wait until after they get their equipment to clock-in. IBP

documents indicate that employees were informed in July

1998 that they are to clock-in “no more than 7 minutes before

your scheduled start time,” and to clock-out at the “end of

your shift as you leave your work area.” (Ex. 76.) This policy

ensures that the clock-in and clock-out procedures are not an

adequate measure of the time employees spend donning and

doffing equipment. Thus, the Mt. Clemens’ precondition to

representative evidence is met in this case.

B. Employee Burden

The burden is on the Plaintiffs to demonstrate with

sufficient evidence that the employees have, in fact, per-

formed work for which they were improperly compensated,

48a

and to produce sufficient evidence to show the amount and

extent of that work, as a matter of just and reasonable

inference. Mt. Clemens, 328 U.S. at 687. Employee test-

imony, documentary evidence, and expert testimony are

appropriate methods of making a prima facie showing of a

pattern or practice of unpaid time and wages. See Castillo v.

Givens, 704 F.2d 181, 195 (Sth Cir. 1983) cert. denied 464

U.S. 850 (1983) (holding “plaintiffs met their burden of proof

by demonstrating that they performed work and were not

compensated . . .” where 13 plaintiffs testified regarding the

hours they and members of their families worked and

plaintiffs’ statistics expert testified and calculated a minimum

and maximum number of hours each plaintiff worked.) See

also Reich v. Waldbaum, 833 F. Supp. 1037, 1042 (S.D.N.Y.

1993) rev'd on other grounds, 52 F.3d 35 (2d Cir. 1995);

Herman vy. Davis, 21 F. Supp. 2d 130, 133 (N.D. N.Y. 1998),

rev'd on other grounds, 196 F.3d 354 (2d Cir. 1999).

Defendants cite New England Telecomms. for the propo-

sition that variation among workers and job positions at IBP’s

Pasco plant requires Plaintiffs to provide testimony from a

plaintiff who has been employed in every position. (Ct. Rec.

552.) However, the court in New England Telecomms. held

that it was “untroubled by the quantum of representative

evidence in this case because the testimony covered each

clearly defined category of worker; there was actual con-

sistency among those workers’ testimony both within each

category and overall . . .” New England Telecomms., 121 F.3d

at 67. The Court is similarly untroubled here, based on the

combination of employee testimony, documentary evidence,

and expert testimony. See also McLaughlin v. Ho Fat Seto,

850 F.2d 586, 589 (9th Cir. 1988) (holding that while the

testimony of the five employee witnesses was inconsistent in

terms of exact days and hours of overtime, they had

established ‘as a matter of just and reasonable inference’ that

all of the employees regularly worked over eight hours on

weekdays and over six hours on many Saturdays.) (internal

49a

citation omitted), Donovan v. Bel-Loc Diner, 780 F.2d 1113,

1116 (4th Cir. 1985) (holding that the inconsistency in the

pattern or practice does not make the court’s factual

determination clearly erroneous).

The employee testimony established that pre- and post-

shift and meal-time work activities were unpaid, what

activities were being performed during these times, and the

time each activity takes to complete. Just over 40 employees

of IBP’s Pasco Plant testified at trial; 25 employees from the

Processing Division testified, and employees from the

Slaughter Division testified to over 40 job positions. Each

employee testified to their various pre- and _post-shift

activities, as well as their donning and doffing practices

an the 30-minute meal break period. While it is true that

employees vary in some of the equipment they are required to

don and doff, each employee spent some sm cis time

both pre- and post-shift and during the 30-minute meal break.

Most employees share at least some of the required protective

equipment and the time ranges for pre-shift protective

equipment between processing and slaughter are from 30

to 45 minutes in processing, and from 15 to 45 minutes

in slaughter.

Furthermore, even if, as Defendant claims, Plaintiffs were

required to produce evidence regarding every position at the

Pasco plant, the documentary and expert testimony provide

the evidence for jobs not testified to by employees. IBP

documents identify what jobs at the Pasco plant require

protective equipment. (Ex. 74.) Documents also identify jobs

for which protective equipment is not required. (Ex. 75.)

Internal documents demonstrate which equipment must be

removed prior to employees going to lunch or to break. (Exs.

82 and 83.) Other evidence presented indicated what jobs

require which items of personal safety equipment. (Exs. 90-

93.) Plaintiffs’ expert developed average observed times for

most activities performed by employees. (Ex. 1035.) Both

50a

IBP’s and Plaintiffs’ experts performed auditing exercises for

certain activities for each position. (Ex. 358-363.)

Plaintiffs’ time-study expert, Dr. Kenneth Mericle, also

time-studied a variety of pre-shift, post-shift, and meal-break

activities based on repeated observation of these activities in

2 days of plant visits and review of 2 days of videotape taken

by Plaintiffs in early 1999. Defendant’s expert, Dr. Radwin,

criticized Dr. Mericle for not making enough observations of

each activity to give estimated times to a 95% confidence

interval. However, Dr. Mericle made more observations than

IBP in its Pasco plant time-study, made more observations

than IBP made of most activities in its non-union plant time-

studies combined, made more observations than were made in

Dr. Radwin’s 3-day aborted study, and made more observa-

tions than were made for almost every element in the Dr.

Fernandez Report. (Ex. 241.) Dr. Mericle’s practice with

respect to sample size and calculation of confidence intervals

is consistent with the practice and experience of the witnesses

called by IBP. For example, Jeffrey Fernandez testified about

a time-study he had done at two other IBP plants. Many of his

reported times did not meet a 95% confidence interval, and he

- generally obtained fewer observations than did Dr. Mericle.

(Trial Exhibit 241.) IBP’s own Pasco time-study, performed

by Cody Hostick, did not include a confidence interval

calculation, and included many fewer observations than did

Dr. Mericle’s study. While testimony to a 95% confidence

interval study would be desirable from an academic

standpoint, and would likely be afforded more weight, the

Mericle study was sufficiently detailed and consistent with

the Radwin study, such that it would be the type of study

relied upon in the industry and is entitled to some evidentiary

weight herein. The Court finds the study by Dr. Mericle to

be reliable.

The combination of this evidence convinces the Court that

employees have, in fact, performed work for which they were

Sla

improperly compensated, and that they have uced

sufficient evidence to show the amount and al that

work “as a matter of just and reasonable inference.”

C. Employer Rebuttal

Once plaintiffs have established that the emplo

performing unpaid work and provided ation pag

extent and amount of the unpaid work, the burden then shifts

to the ernployer to demonstrate the precise amount of work

performed or evidence to “negative the reasonableness of the

inference to be drawn from the employee’s evidence.” Mt

Clemens, 328 U.S. at 687-88. |

IBP has failed to rebut the Plaintiffs’ evidence that they

were not paid for the time they spent in pre- and post-shift

activities, and in activities during their meal break The

employee manual for IBP states that employees are to find

out their correct starting time from their Supervisor. (Ex. |

page 18.) (See also testimony of Barb Salter.) The manual

also notes that “[wjork schedules are posted daily on the

bulletin board, and it will be the responsibility of each

employee to read.” (Ex. | page 18.) The testimony and

evidence were that the employees arrive up to 40 minutes

early to retrieve and don their required equipment.

(Testimony of Pedro Galvan Juarez, Modesto Reynada, Amir

Mustafic.) The swipe card evidence bolsters this claim.

IV. Statute of Limitation

_Under the FLSA, the statute of limitation for willful

violations is 3 years. 29 U.S.C. § 255(a). A violation is will-

ful if the employer “knew or showed reckless disregard for

the matter of whether its conduct was prohibited by the

[FLSA].” McLaughlin v. Richland Shoe Co., 4

doy th 0., 486 U.S. 128,

IBP’s violations herein were willful. In early 1996, IBP

was aware of the meal-break issue, based on Kimbro’s review

52a

of the Legal Master Narrative Report. (Kimbro; Exhibit 192.)

IBP also knew that in Reich v. /BF, the court had determined

that donning and doffing activity was work when performed

pre-shift and post-shift. Kimbro recklessly assumed that

employees spent only | or 2 minutes in meal-break donning

and doffing, based on a fundamental misunderstanding of

company policy requiring doffing and donning to use the

restroom. IBP also knew or showed reckless disregard of the

FLSA in concluding that § 3(0) excluded union plant com-

pensation for activities such as sanding steels, glove pin

distribution, cleaning protective equipment, retrieving tools

(such as meat hooks and air knives), and the various types of

non-clothing pre-shift and post-shift activities commonly

performed by class members. Therefore, the court will apply

the 3-year FLSA statute of limitation to Plaintiffs’ claims.

V. FLSA Claims

A. Overtime Under the FLSA

Plaintiffs are entitled to recover for unpaid work performed

in excess of 40 hours a week. Under the FLSA, work for

which the employees must be compensated means “mental or

physical exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily and

primarily for the benefit of the employer.” Tennessee Coal,

Iron & R.R. v. Muscoda, 321 U.S. 590, 598 (1944). “Subse-

quently, the Court ruled that there need be no exertion at all

and that all hours are hours worked which the employee

is required to give his employer . . . ” 29 C.F.R. § 785.7

(citing Armour & Co. v. Wantock, 323 U.S. 126 (1944) and

Skidmore v. Swift, 323 U.S. 134 (1994)). An employer is,

thus, liable for all work that it permits, i.e., all work of which

it has actual or constructive knowledge. See, e.g., Forrester v.

IGA, 646 F.2d 413, 414 (9th Cir. 1981). An employer is liable

for pre-shift work it permits, even though it does not require

the employees to arrive prior to the start of the shift. Lindow

v. United States, 738 F.2d 1057, 1060 (9th Cir. 1984).

53a

The FLSA requires employers to pay employees overtime

hoy — in excess of 40 per week. 29 U.S.C.A.

a). “The principal congressional in enacti

the Fair Labor Standards Act of aa a 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 of workers.””

Barrantine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728

739 (1981) (citing 29 U.S.C. § 202(a).) Under the FLSA. an

employer must compensate employees at one and one-half

time their regular rate of pay for all hours worked in excess of

40 in a week. 29 U.S.C. § 207. For employees paid sclely by

the hour, their regular rate of pay fi i i

, y for overtime purposes

hourly rate. 29 C.F.R. § 778.110. _

B. Compensable Time

The donni

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