# Petition for Writ of Certiorari — IBP, Inc. v. Alvarez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0745%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 21 ## Text 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) il 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 Iii sbsinantnstedaeeeniassenintnatnennnsenenccncenscessccccesseveesecesceescstess 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) iv 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 17 ~ Vv 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. vi 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 ea 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 a 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 ee 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 2 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 3 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) 4 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). 5 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 6 “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 7 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. 8 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 9 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). 10 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 12 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. 13 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 14 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. 15 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. 16 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 17 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 18 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 . — 19 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. 20 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). 21 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: 22 “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 23 (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 24 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 25 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. 26 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. 27 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 la 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. 2a 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. 3a 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 4a 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. Sa 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.” 6a 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 7a 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 8a 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 9a 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 IV 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 9 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. —" V 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 10 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. Vi 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 ed — 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 i 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." IX 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. X 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. XI 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 wi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0745%3A02. Public record. Not legal advice.