Amicus Curiae Brief — Tum v. Barber Foods, Inc., Dba Barber Foods

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IN THE

Supreme Court of the United States

ABDELA TUM, ef ai.,

Petitioners,

Vv.

BARBER Foops, INC., d/b/a BARBER FoopDs,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE NATIONAL CHICKEN COUNCIL

AND AMERICAN MEAT INSTITUTE

AS AMICI CURIAE SUPPORTING RESPONDENT

DAVID R. WYLIE *

D. CHRISTOPHER LAUDERDALE

JACKSON LEWIS LLP

One Liberty Square

55 Beattie Place, Suite 800

Greenville, SC 29601

(864) 232-7000

* Counsel of Record Counsel for Amici Curiae

August 1, 2005

Wicson-EPes PRINTING Co., INC. — (202) 789-0086 -— WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

Under section 4(a) of the Portal-to-Portal Act of 1947, an

employer’s obligation to pay wages under the Fair Labor

Standards Act of 1938 (“FLSA”) does not include 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” or time which an

employee spends engaged in “activities which are preliminary

to or postliminary to said principal activity or activities.”

29 U.S.C. § 254(a).

This brief for amici curiae will address the following

questions presented:

1. Is the walking that occurs between compensable pre

and post-shift clothes-changing and the time employees

arrive at or depart from their actual workstations non-

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

of performance of the principal activity or activities

which such employee[s] [are] employed to perform”

within the meaning of section 4(a)(1)?

2. Under the FLSA, as amended by the Portal-to-Portal

Act, are employees entitled to compensation for time

spent waiting to obtain sanitary or protective attire?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ................ssssssssssrsssesseeenes

TABLE OF AUTHIORITIES........ccccccccosccsccsecscssesscsscesees

PETITIONERS ARE ADVOCATING A

RETURN TO THE HOLDING OF MT.

CLEMENS POTTERY WHICH WAS LEG-

ISLATIVELY OVERRULED BY THE

PORTAL-TO-PORTAL ACT .......ccccccceseeseeeeees

THE COURT’S OPINION IN STEINER V.

MITCHELL PROVIDES NO SUPPORT FOR

THE REDEFINITION OF THE COM-

PENSABLE WORKDAY ADVOCATED BY

FES COS OEE cocnesecsccscccenencnsesssnenevscascecesssenssece

A. The Rationale of Steiner Cannot Be

Applied to Section 4(a)(1) Activities Such

B. The Walking and Waiting Time At Issue

Are Noncompensable Preliminary And

Postliminary Activities Under Section

GE nnncsenennnnnnneennennsenenesteenenn

NONE OF THE VARYING RATIONALES

OFFERED IN SUPPORT OF PETITIONERS’

ADVOCATED RETURN TO THE RE-

JECTED REASONING OF MT. CLEMENS

POTTERY ARE SUPPORTED BY THE

LANGUAGE OF THE STATUTE...................

(iii)

> we <

IV.

TABLE OF CONTENTS—Continued

A. The Statute Does Not Support The “First

Principal Activity” Standard Advocated By

PID cncenenscescsnnmnnmenenmmneatin

THE “FIRST PRINCIPAL ACTIVITY” OR

“CONTINUOUS WORKDAY” STANDARDS

ADVOCATED BY PETITIONERS WOULD

ERADICATE THE DE MINIMIS RULE..........

CURED ccsseresssscsssesessnenssssscesensenseemenesnssnsemnsnessts

Page

TABLE OF AUTHORITIES

CASES Page

Adams v. United States, 10 WH Cases 2d 1000,

Ee 19

Aguilar v. United States, 36 Fed. Cl. 560, 566

I cstnssncssintateiaatnnipaehheeeatitatinss iti iaetasasinaiiiainaatinilinee 14

Aiken v. City of Memphis, 190 F.3d 753, 758 (6th

Cir. 1999), cert. denied, 528 U.S. 1157 (2000).. 19, 23

Alvarez v. IBP, Inc., 339 F.3d 894, 907 (9th Cir.

2003), cert. granted, 125 S. Ct. 1295 (2005)...2, 18, 25

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

ee 3,4

Anderson v. Pilgrim's Pride Corp., 147 F. Supp.

2d 556 (E.D. Tex. 2001), aff'd 44 Fed. Appx.

Ge ey Se ceeeeennrenem 8, 16, 18

Bagrowski v. Md. Port Auth., 845 F. Supp. 1116

EA GS Se ccscrnnsnannsnsmennemnnmiimeen 8

Barrentine v. Arkansas-Best Freight Sys., Inc.,

750 F.2d 47 (8th Cir. 1984) 00... ccccccccceeseeeee 8

Bateman v. Ford Motor Co., 76 F. Supp. 178

(E.D. Mich. 1948), aff'd sub nom Fisch v.

Gen. Motors Corp., 169 F.2d 266 (6th Cir.

1948), cert. denied, 335 U.S. 902 (1949).......... 5

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

A ree ee Se x

Blum v. Great Lakes Carbon Corp., 418 F.2d 283

— 9

Bobo v. United States, 136 F.3d 1465 (Fed. Cir.

FIFUIE wccsneneanettininenmanintenennenipensmeiiinannieataies 19

Carter v. Panama Canal Co., 463 F.2d 1289

oe | 7,9

Cherup v. Pittsburgh Plate Glass Co., 350 F.

Supp. 386 (N.D. W. Va. 1972), aff'd 480 F.2d

od On 9

TABLE OF AUTHORITIES—Continued

Page

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

ED SIE crceneensresnestenmenmnnsennmnnaneeemuen 8

Dooley v. Liberty Mutual Ins. Co., 307 F.Supp.

Oe CD, Be etenrerrccescctemmensemmnen 19

Dunlop v. City Elec., Inc., 527 F.2d 394 (Sth Cir.

Ne 8

Gonzalez v. Farmington Foods, Inc., 296 F.

Supp. 2d 912 (N.D. Tl. 2003) .0.........:ccccceeeeeeeee 8

Graham v. City of Chicago, 828 F.Supp. 576

SD 19, 20

Jewell Ridge Coal Corp. v. Local No. 6167,

United Mine Workers, 325 U.S. 161 (1945)...... 4

Jewell Ridge Coal Corp., 325 U.S. at 169, 176..... 24

Lindow v. United States, 738 F.2d 1057 (9th Cir.

ee cxuenesnsenneessepermmemeninniesmnmimnnieiiimmmenineneenns 8, 23

Nardone v. Gen. Motors, Inc., 207 F. Supp. 336—

> Get crneserenenneenesteemeeeees 9

North-Western-Hanna Fuel Co. v. McComb, 166

OO 5.

Pressley v. Sanderson Farms, Inc., 143 Lab Cas

(CCH) § 34,262 (S.D. Tex. Apr. 23, 2001),

aff'd without published opinions 33 Fed.

Appx. 705 (Sth Cir. Mar. 7, 2002)..............0000+. 8

Ralph v. Tidewater Constr. Corp., 361 F.2d 806

EGE GUI cectrsnsneemmensunesmeensincnnnmetennen 7,9

Reich v. IBP, Inc., 38 F.3d 1123 (1st Cir. 1994) ... passim

Reich v. IBP, Inc., 820 F. Supp. 1315 (D. Kan.

(2nd Cir. 1995) snenanesnenmesianenenesimmnmmnanamemneunesties passim

Steiner v. Mitchell, 215 F.2d 171 (6th Cir. 1954).. passim

vii

TABLE OF AUTHORITIES—Continued

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

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local

Ne. 123, 321 U.S. FBO (1944) ...ccccccccccccsscccccsccees

Tum v. Barber Foods, Inc., 360 F.3d 274 (ist

Cir. 2004), cert. granted, 125 S. Ct. 1295

Universal Camera Corp. v. NLRB, 340 U.S. 474

IGE enssssssenssnestminmemmeemmetieint

IN THE

Supreme Court of the United States

No. 04-66

ABDELA TUM, ef ai.,

Petitioners,

BARBER Foops, INC., d/b/a BARBER FOoDs,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE NATIONAL CHICKEN COUNCIL

AND AMERICAN MEAT INSTITUTE

AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF THE AMICI CURIAE '

The National Chicken Council (“NCC”) is the primary trade

organization representing the poultry industry in the United

States. The member companies of NCC produce and process

about 95 percent of meat-type chickens marketed and employ

in excess of 350,000 workers throughout the United States.

' The consents of the parties have been filed with the Clerk of Court.

Pursuant to Rule 37.6, amici NCC and AMI state that no counsel for a

party has writien this brief in whole or in part and that no person or entity,

other than Amici, has made a monetary contribution to the preparation of

submission of this brief.

The American Meat Institute (“AMI”) is the nation’s oldest

and largest trade association representing packers and proces-

sors of beef, pork, lamb, veal, turkey and processed meat

products. AMI member companies produce more than 95

percent of meat products available in the United States. There

are more than 200,000 workers employed in the meat packing

and processing industries in the United States. AMI has rep-

resented the interests of the meat packing and processing

community since the Federal Meat Inspection Act was passed

in 1906.

Each of the amici noted above has a compelling interest in

the issues presented in this case. Petitioners and their sup-

porting amici urge the court to hold that the walking and

waiting time at issue in this case is compensable. We dis-

agree. Such a holding would reverse many years of precedent

and would affect timekeeping practices and systems in place

throughout almost all types of public and private employ-

ment. Such a holding would create immense liabilities for

employers who are members of the amici organizations re-

sulting from both litigation and costs associated with develop-

ing and implementing new timekeeping systems and practices.

The plaintiffs in the cases under review, Tum v. Barber

Foods, Inc., 360 F.3d 274 (ist Cir. 2004) (No. 04-66) and

Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003) (No. 03-

1238), urge an interpretation of the FLSA which would un-

dermine the 1947 Portal-to-Portal Act and would upend the

payroll and timekeeping practices of almost all employers in

order to achieve the illusory benefit of a temporary windfall

for the plaintiffs in these and other similar cases. The

intermetation urged by petitioners and supporting amici in

this case is contrary to the congressional intent and clear

language of the Portal-to-Portal Act. NCC and AMI accord-

ingly submit this brief to assist the Court in its resolution of

this case.

SUMMARY OF ARGUMENT

In this case, petitioners and the amici parties supporting

petitioners contend that poultry and meat processing employ-

ees are entitled to compensation for time spent walking to and

from their workstations. It is also argued to the Court that

time spent waiting to obtain certain sanitary or protective

attire is compensable activity under the Fair Labor Standards

Act (hereinafter “FLSA”). petitioners and the amici parties

who have filed a brief in support of the petitioners are thereby

urging this court to return to the rejected holding of Anderson

v. Mt. Clemens Pottery, Co., 328 U.S. 680 (1946), which was

expressly overruled by the Portal-to-Portal Act of 1947.

Petitioners and supporting amici advocate an expansion of

the compensable workday that would profoundly affect the

timekeeping practices, policies and systems of a broad range

of employers in both public and private employment. To

achieve this end the Court is urged to define the compensable

workday based upon the first and last compensable activity.

These arguments, however, are based upon a misapplication

of the court’s opinion in Steiner v. Mitchell, 350 U.S. 247

(1956), are contrary to the Secretary of Labor’s (hereinafter

“Secretary”) interpretive regulations and, most importantly,

are contrary to the language and clear purpose of the Portal-

to-Portal Act.

The standard advocated by petitioners and their supporting

amici would create the same substantial and unanticipated

liabilities which the Portal-to-Portal amendments were en-

acted to prevent and would, moreover, abolish the de minimis

rule which has a long history under the FLSA.

If the concept of the compensable workday under the FLSA

is expanded as advocated by petitioners in this case, employ-

ers would face claims for walking time followir.: what is

considered to be the first compensable pre-shift activity and

walking time preceding the last compensable post-shift activ-

ity at the conclusior .f the day. The sanitary and protective

attire at issue in ths case is common to many types of

employment. Any employer that employs individuals who

wear common types of sanitary or protective attire would be

subject to claims for waiting, walking and travel associated

with obtaining, donning, doffing or disposing of such attire.

The arguments advanced in support of petitioners’ position

in this case seek to achieve an end run around the clear lan-

guage and express purpose of the Portal-to-Portal Act and to

eradicate the concept of “de minimis” activities from FLSA

jurisprudence. Such a radical redefinition of terms commonly

applied under the FLSA would require congressional action.

ARGUMENT

I. PETITIONERS ARE ADVOCATING A RETURN

TO THE HOLDING OF MT. CLEMENS POT-

TERY WHICH WAS LEGISLATIVELY OVER-

RULED BY THE PORTAL-TO-PORTAL ACT.

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

(1946), the definition of “work” under the FLSA was ex-

tended to include time spent by employees walking to and

from their workstations and time spent in ancillary activities

at workstations before and after shift. The Mt. Clemens Court

concluded that walking to a workstation required an em-

ployee to be on the employer’s premises and that without the

employee walking to the workstation, the “productive aims of

the employer” could not have been met. /d. at 691. The

Court concluded that walking constituted “physical or mental

exertion (whether burdensome or not) controlled or required

by the employer and pursued necessarily and primarily for

the benefit of the employer and his business.” /d. at 691-92

(footnote omitted) (quoting Tenn. Coal, Iron & R.R. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 598 (1944), and

Jewell Ridge Coal Corp. v. Local No. 6167, United Mine

Workers, 325 U.S. 161, 164-66 (1945)).

Congress acted immediately to overturn the Mt. Clemens

decision. In its next session in 1947, Congress passed the

Portal-to-Portal Act with the express purpose of foreclosing

“portal-to-portal” pay claims seeking compensation for the

time from the instant an employee sets foot on the employer’s

premises to the time of departure. It has been widely recog-

nized that the Portal-to-Portal Act was a direct congressional

response designed to nullify the Mt. Clemens decision. See,

e.g., Steiner v. Mitchell, 350 U.S. 247, 253 (1956) (statin;

that the Portal-to-Portal Act was designed to meet an emer-

gency resulting from the employee claims arising from the

Mt. Clemens decision, which, if allowed to continue, would

have created “wholly unexpected liabilities” to employers

that were “immense in amount”); Tum v. Barber Foods, Inc.,

360 F.3d 274 (ist Cir. 2004), cert. granted, 125 S. Ct. 1295

(2005) (observing that the purpose of the Portal-to-Portal Act

was “to exclude preliminary and postliminary waiting and

walking time from compensability); Reich v. IBP, Inc., 820 F.

Supp. 1315, 1323 (D. Kan. 1993) modified and vacated in

part by 1 Wage & Hour Cas. 2d (BNA) 863 (D. Kan. June 2,

1993), aff'd and remanded by 38 F.3d 1123 (10th Cir. 1994) ,

(stating that “(t]he legislative history of the Portal Act indr-

cates that preliminary activities such as those held to be

compensable in Mt. Clemens are no longer compensable

under FLSA”); United States v. Cook, 795 F.2d 987 (Fed. Cir.

1986) (observing that intent of Portal-to-Portal Act was to

prevent thousands of lawsuits to recover wages for time

workers were in transit to and from workstations); North-

Western-Hanna Fuel Co. v. McComb, 166 F.2d 932 (8th Cir.

1948) (stating that it was common knowledge that congres-

sional intent was to cut off vast amount of »nforeseen dam-

ages some Supreme Court decisions created to the detriment

of cmployers); Bateman v. Ford Motor Co., 76 F. Supp. 178

(E.D. Mich. 1948), aff'd sub nom Fisch v. Gen. Motors Corp.,

169 F.2d 266 (6th Cir. 1948), cert. denied, 335 U.S. 902

(1949) (stating that the “main purpose” of the Portal-to-Portal

Act was to prevent employees’ claims for time spent “walk-

ing, washing, punching the clock, changing clothes, etc.”). In

contending that walking time is compensable in the present

case, the petitioners are urging this Court to turn back the

clock to pre-1947 reasoning which would create enormous

and unforeseen liabilities and would also require wholesale

revisions to timekeeping practices and systems throughout all

types of public and private employment.

The congressional purpose motivating the enactment of the

Portal-to-Portal Act could not have been made more clear.

Section 1 of the Act states that: |

The Congress finds that the Fair Labor Standards Act of

1938, as amended, has been interpreted judicially in dis-

regard of long-established customs, practices, and con-

tracts between employers and employees, thereby creat-

ing wholly unexpected liabilities, immense in amount

and retroactive in operation... 29 U.S.C. § 251(a).

The Portal-to-Portal Act makes expressly clear that time

spent waiking, as well as time spent performing other prelimi-

nary or postliminary activities, is “not compensable.” The

Act provides:

(a) Activities not compensable

Except as provided in subsection (b) of this section, no

employer shall be subject to any liability or punishment

under the Fair Labor Standards Act of 1938, as amended

... on account of the failure of such employer to pay an

employee minimum wages, or to pay an employee over-

time compensation, for or on account of any of the

following activities of such employee engaged in on or

after May 14, 1947—

(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 per-

form, 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 employee commences, or subse-

quent to the time on any particular workday at which he

ceases, such principal activity or activities.

29 U.S.C. § 254(a) (Supp. 1997).

This section of the Portal-to-Portal Act makes clear that the

Portal-to-Portal Act excludes not only “preliminary” and

“postliminary” activities as generally defined by subsection

(aX(2), but also expressly excludes the “walking” time (sub-

section (a)(1)) at issue in this litigation.

The contention that the walking time at issue in this case is

compensable notwithstanding the clear language of the Portal-

to-Portal Act is an. attack on longstanding precedent and

timekeeping practices based upon such precedent. Applying

the Portal-to-Portal Act, courts have concluded that even

significant time spent walking or otherwise traveling to and

from a work site is not compensable, even where such travel

occurs on the employer’s property. In Carter v. Panama

Canal Co., 463 F.2d 1289 (D.C. Cir. 1972), locomotive

operators employed on locks operated by the Panama Canal

Company were required to be on board their locomotive at

the beginning of their shift. Prior to their shift, the operators

were required to check an assignment board and then walk 2

to 15 minutes to reach their locomotive, depending upon the

location of the locomotive to which they were assigned. /d.

at 1291. The court concluded that the principal activity of the

operators was operation of the locomotive, and the actual

place of performance of their work was the locomotive itself.

Id. at 1294. The court found “little room for question” that

the locomotive operators’ claim for compensation for time

spent walking to and from their locomotives were “precluded

by the Portal-to-Portal Act.” /d. at 1292. Similarly, in Ralph

v. Tidewater Constr. Corp., 361 F.2d 806 (4th Cir. 1966),

operating engineers and ironworkers enmployed in the con-

struction of the Chesapeake Bay bridge siought compensation

for a daily boat ride to their work site,, which required 15

minutes to 1 hour each way. The Fourtlh Circuit found that

claims for such compensation were speciifically precluded by

section 4(a) of the Portal-to-Portal Act.. /d. at 808-09; 29

U.S.C. § 254(a).

That the interpretation of the FLSA adivocated by petition-

ers would require wholesale revision of timekeeping practices

throughout a wide range of public and private employment is

demonstrated by the wide variety of ermployers who have

faced similar claims. Such claims hawe been pervasive in

meat and poultry processing. See, e.g., De Ascencio v. Tyson

Foods, Inc., 342 F.3d 301 (3rd Cir. 20033); Reich v. Monfort,

Inc., 144 F.3d 1329 (10th Cir. 1998); Gomzalez v. Farmington

Foods, Inc., 296 F. Supp. 2d 912 (N.D. Ill. 2003); Anderson

v. Pilgrim’s Pride Corp., 147 F. Supp.. 2d 556 (E.D. Tex.

2001), aff'd, 44 Fed. Appx. 652 (Sth Cis. 2002); Pressley v.

Sanderson Farms, Inc., 143 Lab Cas (C°CH) © 34,262 (S.D.

Tex. Apr. 23, 2001), aff'd without publisshed opinion 33 Fed.

Appx. 705 (Sth Cir. Mar. 7, 2002). Swich claims similarly

have been asserted against a wide varietty of public and pri-

vate employers. See, e.g., Bejil v. Ethiccon Inc., 269 F 3d 477

(Sth Cir. 2001) (claims for donning aand doffing of outer gar-

ments by employees engaged in tme manufacture of medical

supplies); Bagrowski v. Md. Port Auth, 845 F. Supp. 1116

(D. Md. 1994) (claim by Prort Authority police officers for

time spent donning unifornns), Reich v. N.Y. City Transit Auth.,

45 F.3d 646 (2nd Cir. 1995) (Transit Authority police officers

asserted claims for tog handling duties and commuting time

before and after ‘their regular work shift); Lindow v. United

States, 738 F <2d 1057 (9th Cir. 1984) (claims for pre-shift

activities byy employees of Army Corps of Engineers who

operated. hydroelectric facilities); Barrentine v. Arkansas-Best

Freigiht Sys., Inc., 750 F.2d 47 (8th Cir. 1984) (truck drivers

assserted claim for pre-trip activities); Dunlop v. City Elec.,

Inc., 527 F.2d 394 (Sth Cir. 1976) (claims asserted by electri-

cians for compensation for various pre-shift activities); Carter

v. Panama Canal Co., 463 F.2d 1289 (D.C. Cir. 1972) (loco-

motive engineers sought compensation for walking time prior

to shift); Blum v. Great Lakes Carbon Corp., 418 F.2d 283

(Sth Cir. 1969) (employees engaged in manufacture of carbon

tivities); Ralph v. Tidewater Constr. Corp., 361 F.2d 806 (4th

Cir. 1966) (operating engineers and iron workers employed in

construction of Chesapeake Bay Bridge sought compensation

for daily boa! trip to and from place of work); Cherup v.

Pittsburgh Plate Glass Co., 350 F. Supp. 386 (N.D. W. Va.

1972), aff'd by 480 F.2d 921 (4th Cir. 1973) (chlorine manu-

facturing employees sought compensation for pre- and post-

shift clothes changing); and Nardone v. Gen. Motors, Inc.,

207 F. Supp. 336 (D.N.J. 1962) (claims for pre-and post-shift

activities of automotive manufacturing employees). Recent

claims asserted against Honda Manufacturing of Alabama

and Mercedes-Benz U.S. International for compensation for

pre-shift and post-shift activities demonstrate the continued

and rapidly growing prevalence of these issues in an ever-

expanding diverse range of industries. Daily Labor Report

(BNA) p. A-8 (Jan. 9, 2003); Daily Labor Report (BNA) p.

A-5 (Apr. 4, 2003).

The drastic redefinition of the compensable workday advo-

cated by petitioners «vould create large and unforeseen liabili-

ties for both public and private employers. In fact, any

of protective attire may be subject to claims for walking and

travel time associated with obtaining, donning, doffing, or

disposing of such attire. As the First Circuit recognized be-

low, unless walking time is excluded by the Portal-to-Portal

Act, “an almost endless number of activities that precipitate

the employees’ essential tasks would be compensable.” Tum,

360 F.3d at 282. Additionally, police officers and other pub-

lic employees required to wear some type of uniform will

likely seek compensation for walking or travel time following

allegedly compensable donning activities or preceding alleg-

edly compensable doffing activities. The unanticipated bur-

den such claims would create for state and local governments

would be substantial.

Il. THE COURT’S OPINION IN STEINER V.

MITCHELL PROVIDES NO SUPPORT FOR

THE REDEFINITION OF THE COMPENSABLE

WORKDAY ADVOCATED BY PETITIONERS.

Petitioners and supporting amici rely principally upon this

Court’s decision in Steiner v. Mitchell, 350 U.S. 247 (1956).

In Steiner the employees worked in a storage battery plant

where they were exposed to lead, acid and other caustic and

toxic substances and were required by their employer to

spend approximately 30 minutes per day changing clothes

and showering at the end of the shift. /d. at 248. Interpreting

the general definition of preliminary and postliminary activi-

ties in section 4(a)(2) of the Portal-to-Portal Act (but, signifi-

cantly not the express and specific language of section 4(a\ 1)),

the Court found that, under the extreme circumstances present

in battery manufacturing, the clothes changing and showering

were “integral and indispensable” to the employees’ principal

activities and were therefore compensable. /d. at 249. The

Court recognized, however, that under section 4(a)(2) clothes

changing and showering would not be compensable in “nor-

mal” circumstances. /d.

A. The Rationale of Steiner Cannot Be Applied to

Section 4(a)(1) Activities Such As “Walking”

Section 4(a1) of the Portal-to-Portal Act specifically

identifies as “[a}ctivities not compensable” “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.” 29 U.S.C. § 254(a\(1).

The Court in Steiner did not address walking time and in

fact made clear that the “integral and indispensable” analysis

had no application to activities such as walking that are

expressly excluded by section 4(a)(1). The Court held in

Steiner that:

activities performed either before or after the regular

work shift, on or off the production line, are com-

sensahie undoes tho pastal-4p-qested guovidlens of Guo Pals

Labor Standards Act if those activities are an integral

and indispensable part of the principal activities for

which covered workmen are employed and are not

specifically excluded by section 4(a)(1).

350 U.S. at 256. (Emphasis added) Therefore, only where an

otherwise preliminary or postliminary activity is both “inte-

gral and indispensable” and not within the exclusion of sec-

tion 4(a\(1) can it be argued under Steiner that such an activ-

ity is compensable. Because the walking time at issue in this

litigation is clearly “walking” it is not compensable under the

rationale of Steiner or any other interpretation of the Portal-

to-Portal Act.

B. The Walking And Waiting Time At Issue Are

Prelim’ ary And Postlimi-

nary Activities Under Secuon 4(a)(2)

Even if section 4(a\1) of the Portal-to-Portal Act did not

expressly exclude the walking time at issue in this litigation,

such walking time would nevertheless be excluded as prelimi-

nary and postliminary activities. Section 4(a\(2) provides that

principal activity or activities” are not compensable. 29 U.S.C.

§ 254(a\2). The waiting time at issue in this case is, more-

over, clearly a noncompensable preliminary and postliminary

activity under section 4(a)(2).

The regulations promulgated following the Portal-to-Portal

Act allow no other interpretation of the statute. 29 C.F.R.

§ 790.7 (2003) provides in relevant part:

be performed

ak caltenm dite teas ienees

plant gate and the employee’s lathe, workbench or other

actual place of performance of his principal activity or

(g) Other types of activities which may be performed

outside the workday and, when performed under the

conditions normally present, would be considered “pre-

liminary” or “postliminary” activities, include checking

in and out and waiting in line to do so, changing clothes,

washing up or showering, and waiting in line to receive

pay checks.

29 C.F.R. § 790.7 (f) & (g) (footnote omitted) (Pet. App. 12a-

13a, 15a). There is no meaningful distinction between the

walking time at issue in this litigation and the example of

“walking or riding by an employee between the plant gate and

employee's lathe, workbench or other actual place of per-

formance of his principal activity or activities” set forth in the

Secretary's regulations. Moreover, the Secretary's regula-

tions, borrowing from Steiner, make clear that under “the

conditions normally present” waiting time is a noncom-

pensable preliminary activity. The First Circuit appropriately

recognized that the regulations indicate “that a reasonable

amount of waiting time is intended to be preliminary or

postliminary.” Tum, 360 F.3d at 282. The court noted that “a

line must be drawn, otherwise an almost endless number of

activities that precipitate the employees’ essential tasks would

be compensable.” /d

The First Circuit further recognized below that “nothing in

Steiner requires” the conclusion that compensable donning

commences the workday and that the workday continues until

the last act of compensable doffing is performed. Tum 360

F.3d at 281. Concurring, Chief Judge Boudin recognized the

implications of the extension of Steiner urged here, noting

that “the more serious problem for employers arises in cases

such as this one by attempts to extend Steiner further to walk-

ing and waiting incident to such donning and doffing. This of

course may greatly extend the amount of time in question and

may seem especially incongruous where the amount of time

spent in actually donning and doffing clothes and equipment

is generally pretty minimal.” /d. at 284.

The notion that some preliminary and postliminary activi-

ties (as defined by the Portal-to-Portal Act) are integral and

indispensable to a principal activity and therefore com-

pensable originated with the Court’s decision in Steiner. The

Portal-to-Portal Act contains no such concept. Contrary to

the assertions of the Secretary here, however, the Court in

are “integral and indispensable” only in extreme and unusual

circumstances such as those in Steiner.

In its opinion in Steiner, the Sixth Circuit found that the

showering and clothes-changing activities were compensable,

specifically relying on findings by the district court that “[t}he

the clothing, and in some cases, of burning the skin of those

who have occasion to handle it” and that “’[s}torage battery

manufacture is recognized by the experts as one of the most

hazardous of the lead-using industries.’"” Steiner v. Mitchell,

215 F.2d 171, 174 (6th Cir. 1954). Thus Steiner, like the

regulations, makes clear that “preliminary” or “postliminary”

activities will be found to be integral and indispensable to the

principal activity only in narrow and unique circumstances.

The Steiner decision has been widely recognized as a nar-

row holding limited to its “unique facts.” See Tum, 360 F3d

at 281 (Boudin, C.J., concurring) (observing that in Steiner,

“the dangers were extreme and unique to the job”); Reich v.

IBP, Inc., 820 F. Supp. 1315 (D. Kan. 1993) (characterizing

the Steiner decisions as “very narrow and closely tied to the

extreme facts presented by the case,” including the “toxicity

of the materials involved in manufacturing batteries and dis-

cussed at length the dangers inherent in working with such

materials”); see also Reich v. N.Y. City Transit Auth., 45 F.3d

646, 650 (2nd Cir. 1995) (noting that the Supreme Court found

that the activities in Steiner were integral and indispensable

“given the high risks to employee safety”); Aguilar v. United

States, 36 Fed. Cl. 560, 566 (1996) (stating that “[tjhe excep-

tion fashioned in Steiner narrowly construed the phrase ‘prin-

cipal activity’ and found only a limited exception, expressly

compelled by health, hygiene, and safety considerations.

Steiner went to great lengths to emphasize that changing

clothes and showering are not compensable under ‘normal’

circumstances”).

Any potential health risks that might arguably be faced by

meat and poultry processing workers are not comparable to

those present in Steiner, in which employees were exposed to

acid, lead, and other corrosive materials. Steiner, 350 U.S. at

249-50. The fact that, in the very limited circumstances pre-

sent in such a hazardous work environment as that described

in Steiner, pre-shift and post-shift activities can be found to

be integral and indispensable to a principal activity in no way

supports a conclusion that the walking or waiting time of

employees in this case is compensable. Indeed, Steiner did

not specifically address waiting time and carved out walking

time. It is clear that any walking or waiting associated with

the donning and doffing activities at issue in this case are

neither a principal activity nor integral and indispensable to a

principal activity under Steiner.

As Chief Judge Boudin recognized below, the Secretary's

position set forth in the Department of Labor’s (hereinafter

“DOL”) amicus brief is “a substantial step beyond Steiner.”

Tum, 360 F.2d at 286. Petitioners therefore urge this court to

expand the exception of Steiner to the point that the exception

will swallow the rule established by the Portal-to-Portal Act.

Such a holding would represent a return to the same expan-

sive definition of “compensable activities” that prompted

Congress, in 1947, to enact the Portal-to-Portal amendments.

Ill. NONE OF THE VARYING RATIONALES

OFFERED IN SUPPORT OF PETITIONERS’

ADVOCATED RETURN TO THE REJECTED

REASONING OF MT. CLEMENS POTTERY ARE

SUPPORTED BY THE LANGUAGE OF THE

STATUTE.

That petitioners and their supporting amici lack statutory

support for the radical and wholesale revision of the concept

of the compensable workday which they advocate is most

clearly demonstrated by the variety of fictitious rules of law

which they have conjured in place of actual statutory support.

These varying rationales, however, do share one common

characteristic—they are contrary to the language and purpose

of the Portal-to-Portal Act.

A. The Statute Does Not Support The “First

Principal Activity” Standard Advocated By

Petitioners

Petitioners argue that under Steiner, “donning and doffing

constitute part of the petitioners’ principal activities. And

because they are the first and last principal activities of the

day, the donning and doffing process marks the boundaries of

the petitioners’ workday” (Pet. Br. at 10.) The Secretary of

Labor similarly advocates the “first principal activity” stan-

dard as defining the compensable workday. The Secretary

asserts that:

Thus, absent contract or custom, the Portal Act excludes

postliminary activities when they occur before employ-

ees begin their first principal activity or after they

conclude their last principal activity of the day. Travel

and other activities that occur between the first and last

principal activities of a workday, however, are not

excluded from compensation by the Portal Act.

(Br. of the United States as Amicus Curiae at 4).

In response to specific questions posed by the First Circuit

below, the Secretary submitted a brief setting forth the Secre-

tary’s position on the compensability of walking time that

follows compensable donning or precedes the last com-

pensable doffing activity. Before the First Circuit, the Secre-

tary advocated a definition of the compensable workday

based upon employees’ first and last “principal activities.”

The First Circuit recognized the Secretary’s “first principal

activity” argument as a “litigation position” and rejected the

Secretary’s position that the workday began with an em-

ployee’s first, and ended with an employee’s last, principal

activity. Tum, 360 F.3d at 281. The First Circuit rightly

rejected this expansion of compensable activities, recognizing

that this reasoning would “undermine” the very purpose of

the Portal-to-Portal Act. /d. at 281.

With regard to this novel interpretation of the FLSA urged

by the Secretary, the First Circuit observed that “[t]he

[S]ecretary urges an expansion of the ordinary ‘workday’ rule

in favor of a broader, automatic rule that any activity that

satisfies the ‘integral and indispensable’ test itself started the

workday, regardless of context.” Jd. at 280. Citing Anderson

v. Pilgrim’s Pride Corp., 147 F. Supp. 2d 556 (E.D. Tex.

2001), aff'd, 44 Fed. Appx. 652 (5th Cir. 2002),” and Reich v.

IBP, Inc., 38 F.3d 1123 (1st Cir. 1994) the Court further

warned that “the Secretary’s present litigation position in our

? Fifth Circuit Local Rule 47.5.4 permits citation of unpublished deci-

sions as persuasive authority.

view, pushes so far that it threatens to undermine the Portal-

to-Portal Act.” Tum, 360 F.3d at 281.

The contention that donning and doffing constitute first and

last principal activities, and, that the FLSA requires compen-

sation for intervening time spent walking, was expressly

rejected by the Tenth Circuit in Reich v. IBP, Inc., 38 F.3d

1123. In Reich, the court held that:

[djespite having found that putting on, cleaning, and

taking off the unique personal protective gear was a

compensable work activity, the district court never-

theless declined to hold that these actions were the first

and last principal activities of the workday which would

commence and toll the running of the timeclock,

including “wait and walk time.” The district court found

that there existed considerable flexibility and personal

discretion with regard to the time and speed that these

activities took place. ... Given these circumstances, the

district court concluded that the workers should be paid

on the basis of reasonable time to conduct these

activities not to include “wait and walk time.” ... We

affirm . . . the denial of “wait and walk time” related to

the above issues.

38 F.3d at 1127.2 Similarly, as noted by the First Circuit

below, the Fifth Circuit affirmed without published opinion a

decision dismissing nearly identical claims by poultry work-

> In Reich v. IBP, the donning and doffing activities of knife-wielding

meat processing employees were found to be compensable, while similar

activities of non-knife-wielding employees were found to be noncom-

pensable. 38 F.3d at 1125-26. The interpretation offered by petitioners in

this case would create the following anomaly: knife-wielding employees

in such circumstances, once they have performed the “first principal

activity” of donning would be compensated for waiting time and for time

spent walking to the work station. Non-knife-wielding employees in the

same workforce, however, would not be compensated for such waiting

and walking time because their donning and doffing activities are not

compensable. Any interpretation of the statute that yields such a result is

clearly in conflict with the statute’s plain meaning.

ers for compensation for time spent walking to and from their

work stations. Anderson v. Pilgrim’s Pride Corp., 147 F.

Supp. 2d 556, 563 n.12 (E.D. Tex. 2001), aff'd, 44 Fed.

Appx. 652 (Sth Cir. 2002). The First Circuit’s opinion below,

Reich v. IBP, and Pilgrim’s Pride reflect a longstanding

interpretation of the Portal-to-Portal Act that has persisted

over many decades for a good reason—it is faithful to the

clear language of the statute.

B. There Is No “Continuous Workday Rule”

Which Compels The Interpretation Of The Act

Advocated By Petitioners

Petitioner’s arguments also rest on the erroneous assertion

that “[t}here is nothing in the statute on 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. Br. at

24-25) (quoting Alvarez v. IBP, Inc., 339 F.3d 894, 907 (9th

Cir. 2003)). In the history of the FLSA there have been innu-

merable circumstances in which the DOL and the courts have

found that the “workday” is anything but continuous. Indeed,

the Secretary’s regulations recognize that the “workday” may

often be “discontinuous”.

The Secretary’s regulations have long recognized that work

performed away from an employer’s premises or at home,

after the completion of an employee’s normal shift, is com-

pensable. 29 C.F.R. 785.12. (regulations pertaining to work-

ing time apply “to work performed away from the premises or

the job site, or even at home”). Additionally, the regulations

recognize that work performed during travel, but not the

travel time itself, is compensable. 29 C.F.R. 785.41.

The “First Principal Activity” standard and “Continuous

Workday Rule” asserted by petitioners and supporting amici

are also in conflict with the opinions of numerous courts of

appeals that have rejected such reasoning in addressing the

compensability of travel time for police dog handlers. For

example, in Reich v. N.Y. City Transit Auth., 45 F.3d 646

(2nd Cir. 1995), dog handlers employed by the New York

Transit Authority Police Department sought compensation for

time spent commuting with their dogs. Each handler had sole

responsibility for the care of his or her dog and was required

to groom, feed, walk, train, house, and otherwise care for the

dog. Jd. at 648. The dog handlers were not permitted to

travel to work using public transportation but were required

to use their personal vehicles to transport the dogs to and

from work. Jd. The Second Circuit rejected the argument of

the Secretary that, because the handlers were required to

perform compensable activities related to caring for the dogs,

the travel time to and from work was, therefore, compensable.

The court concluded that:

the time spent by handlers driving to and from work with

their dogs, except to the extent that actual duties of care,

feeding, training, walking or cleaning up occur during

such commute, is not compensable work. Such true

dog-care work occurring during the commute, however,

is not exempted from compensation by the Portal-to-

Portal Act.

Id. at 652. Both the Federal Circuit and the Sixth Circuit

have reached similar conclusions. See Bobo v. United States,

136 F.3d 1465, 1468 (Fed. Cir. 1998), and Aiken v. City of

Memphis, 190 F.3d 753, 758 (6th Cir. 1999), cert. denied,

528 U.S. 1157 (2000). These courts rejected the reasoning of

Graham vy. City of Chicago, 82% F.Supp. 576 (N.D. Ill. 1993),

in which the court had applied the “first principal activity”

analysis to find that travel time which followed compensable

dog care activities was also compensable. The Graham analy-

sis has been widely rejected and criticized. See e.g. Adams v.

_ United States, 10 WH Cases 2d 1000, 1014 (Fed. Cl. 2005)

(observing that “[t]he Graham analysis appears to be an inter-

pretation of the Portal-to-Portal Act which is in a distinct

minority and is probably no longer good law.”); Dooley v.

Liberty Mutual Ins. Co., 307 F.Supp. 2d 234, 248 (D. Mass.

2004) (stating that “Graham remains, but it is contradicted by

extensive case law reaching the opposite conclusion.”)

These decisions reject the proposition that the performance

of some compensable activity prior to or during travel time

(which under § 4(a)(1) is indistinguishable from walking time)

commences the workday and renders such travel time com-

pensable. In contrast, under the arguments advanced by peti-

tioners, if a police dog handler’s commute to work followed

compensable dog care activities, the time spent commuting

would be compensable. Under section 4(a)(1) of the Portal-

to-Portal Act, there is no distinction between time spent

“walking,” “riding,” or “traveling,” to a workplace. 29 U.S.C.

§ 254(a). This is precisely the type of “absurd” result the

First Circuit below recognized would follow from the reason-

ing of the Secretary. The court observed that “[t]his exten-

sion overreaches and would lead to the absurd result that an

employee who dons required equipment supplied by the com-

pany at 5:00 a.m., at this home, starts his workday for FLSA

purposes at 5:00 a.m.—even though he is not required to

punch in to work and does not punch in until 8:00 a.m. This

plainly cannot be what Congress intended.” Tum, 360 F.3d

at 280-81.

The concept of a universally mandatory “continuous work-

day” is a figment of petitioners’ imagination. To the con-

trary, as found by the First Circuit below, the Tenth Circuit in

Reich v. IBP, and the Second Circuit in Reich v. N.Y. City

Transit Auth., time spent traveling to or from the place where

one’s principal work is performed is not rendered com-

pensable as a result of the previous or intermittent perform-

ance of pre or post-shift compensable duties. Consistent with

this reasoning, the Secretary’s regulations additionally pro-

vide that:

[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 em-

ployee’s “principal activity.” ... This does not nec-

essarily mean, however, that travel between the wash-

room or clothes-changing place and the actual place of

performance of the specific work the employee is

employed to perform, would be excluded from the type

of travel to which section 4(a) refers.

29 C.F.R. § 790.7, n.49 (Pet. App. 15a). The arguments of

the petitioners and their supporting amici (which include the

DOL) are difficult to reconcile with this longstanding regula-

tion upon which employers have relied for decades.

Apparently recognizing the vast liabilities that would result

from judicial adoption of the “first principal activity” stan-

dard, the Secretary offers to mitigate its effects by conceding

that “when an employee has the option to don and doff re-

quired clothing and gear at home, that activity is not integral,

not compensable, and does not begin or end the workday.”

(Br. of the United States as Amicus Curiae at page 23). The

problem with this exception to the “first principal activity”

standard is that, like the first principal activity standard itself,

it is not supported by the statute and is contradicted by the

Secretary’s regulations.

As discussed below, an action that is a “principal activity”

is compensable under the Portal-to-Portal Act unless it is de

minimis. That it is performed at home is of no consequence

under the Secretary’s regulations (see 29 C.F.R. 785.12 dis-

cussed above) and numerous well reasoned cases (see Reich

v. New York Transit Authority, 45 F.3d 646 and related cases

discussed above). There is no statutory basis for treating

principal activities performed at home differently than princi-

pal activities performed at the job site. Neither the FLSA nor

the Portal-to-Portal amendments make such a distinction.

Moreover, the effort required to perform any donning or

doffing is identical whether such activity occurs at home or

on the employer’s premises. The First Circuit recognized the

fallacy of the Secretary’s proffered exception to the first

principal activity standard. observing that “[t]he Secretary

offers a fallback position that the workday starts with any

donning or doffing of required gear so long as it is done on

company property. But the logic of the Secretary’s position

does not permit such a narrowing, nor does the Secretary’s

fallback argument make sense in a world, for example, in

which not all employees who perform work that is com-

pensable under the FLSA do so at a facility owned and run by

their employer.” Tum, 360 F.3d at 281.

At the time the Portal-to-Portal Act was passed, or at any-

time since, Congress could have adopted “a continuous work-

day rule” or a “first principal activity” standard for determin-

ing the scope of the compensable workday. Congress, how-

ever, has not done so. Such a radical revision of the com-

pensable workday could only be accomplished through leg-

islative action—not judicial fiat. This is particularly true

where the revision of the statute being advocated is directly

contrary to the purpose which prompted Congress to enact the

Portal-to-Portal Act in the first place. See Universal Camera

Corp. v. NLRB, 340 U.S. 474, 487-89 (1951).

IV. THE “FIRST PRINCIPAL ACTIVITY” OR

“CONTINUOUS WORKDAY” STANDARDS

ADVOCATED BY PETITIONERS WOULD

ERADICATE THE DE MINIMIS RULE.

The rule that de minimis activities are not compensable

under the FLSA, even when such activities are integral and

indispensable to a compensable activity, has a long history.

This Court recognized the de minimis concept in Mt. Clemens.

In Mt. Clemens the court observed that:

[w]e do not, of course, preclude the application of a de

minimis rule where the minimum walking time is such as

to be negligible. The workweek contemplated by § 7(a)

must be computed in light of the realities of the indus-

trial world. When the matter in issue concerns only a

few seconds or minutes of work beyond the scheduled

working hours, such trifles may be disregarded. Split-

second absurdities are not justified by the actualities of

working conditions or by the policy of the Fair Labor

Standards Act.

328 U.S. at 692. The regulations also provide that insignifi-

cant periods of time outside of an employee’s normal work-

ing hours may be disregarded. 29 C.F.R. §785.47. Courts

have on numerous subsequent occasions applied the de

minimis rule to find that preliminary or postliminary activities

were not compensable, even where such activities were found

to be integral and indispensable as defined in Steiner. See

e.g. Aiken vy. City of Memphis, 190 F.3d 753, 759 (6th Cir.

1999), cert. denied, 528 U.S. 1157 (2000); Lindow v. United

States, 738 F.2d 1057, 1063 (9th Cir. 1984).

If the interpretation of the FLSA advocated by petitioners

could be supported by the statutory language, the de minimis

rule could never have come into existence and certainly

would not have persisted throughout six decades of subse-

quent application. If the Court were to adopt the radical

revision of the FLSA advocated by petitioners, however, the

de minimis rule would thereby be abolished. If associated

walking and waiting time were to be aggregated with prelimi-

nary or postliminary donning and doffing activities, it is

difficult to conceive of any circumstances under which the de

minimis rule would have any further application. The clear

language of § 4 of the Portal-to-Portal Act does not require or

even allow such an absurd result. Rather, the court below

properly applied the long standing de minimis rule to find that

the activities at issue in this case were not compensable.

Petitioners here seek to upend longstanding precedent to

achieve a windfall. It was recognized in the Congressional

debate which produced the Portal-to-Portal amendments and

has been recognized by this Court that any such windfall

would be short-lived. Mt. Clemens, 328 U.S. at 698 (J.

Burton, dissenting); Jewell Ridge Coal Corp., 325 U.S. at

169, 176. Any employer which has established its wage rates

in reliance upon longstanding interpretations of the FLSA

which excluded walking and waiting time from the com-

pensable workday will, if the workday is redefined as advo-

cated by petitioners, simply revise wage rates accordingly.

Revised wage rates would be necessary to offset the costs

associated with longer periods of heretofore non-compensable

time as well as costs associated with revising timekeeping

practices and systems to capture time spent performing ancil-

lary activities. Petitioners even go so far as to suggest that

employers should be burdened with redesigning their work-

places so that walking and waiting time can be monitored

with precision (Pet. Br. at 33). It should be noted, moreover,

that such costs would be imposed on large and small employ-

ers as well as public and private employers.

The effects of the revision of the concept of the com-

pensable workday advocated by petitioners would be pro-

found and widespread. As Justice Burton recognized in Mt.

Clemens, for the Court to include in the compensable work-

week “items that have been customarily and generally ab-

sorbed in the rate of pay but excluded from measured

working time is not justified in the absence of legislative

action.” 328 U.S. at 698 (J. Burton, dissenting).

CONCLUSION

For the foregoing reasons, amici organizations respectfully

urge the Court to reverse the judgment of the Ninth Circuit in

Alvarez, and affirm the judgment of the First Circuit in Tum.

Respectfully submitted,