There is a complicated history of whether time spent in advance of the start of an employee’s workday is compensable under the Fair Labor Standards Act (FLSA). In one of its first FLSA decisions, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Supreme Court held that “work” under the FLSA included the time employees spent walking from time clocks near a factory entrance to their workstations.

Congress responded in 1947 by enacting the Portal-to-Portal Act, which, among other things, excepted from FLSA coverage walking on the employer’s premises to and from the location of the employee’s “principal activity or activities.” The Portal-to-Portal Act also excluded from compensation activities that are “preliminary or postliminary” to “said principal activity or activities.”

In 1955, the Supreme Court explained that the “term ’principal activity or activities’ embraces all activities which are ’an integral and indispensable part of the principal activities,’” including the donning and doffing of specialized protective gear “before or after the regular work shift, on or off the production line.” Steiner v. Mitchell, 350 U.S. 247 (1955).

On November 8, 2005, the Supreme Court once again turned to the issue of donning and doffing. In one case, employees filed a class action seeking compensation for time spent donning and doffing required protective gear and walking from the locker rooms to the production floor of a meat processing facility. In a second case, employees sought compensation for time spent donning and doffing required protective gear at a poultry processing plant, as well as the attendant walking and waiting times.

With a small exception, the Supreme Court ruled in favor of the employees in both cases. The Court held that both the time spent donning and doffing the clothing, and walking from the locker room to the employees’ work sites, were compensable work under the FLSA.

The employers argued that, because donning the protective clothing is not the “principal activity” that started the workday, walking occurring immediately after donning and immediately before doffing was not compensable. The Court observed that adopting the employers’ argument would create a third category of activities – those that are “integral and indispensable” to a “principal activity,” but are not themselves “principal activities” and thus would not be compensable. The Court concluded that the argument was contrary to the specific language in the Portal-to-Portal Act. In the Court’s eyes, the workday starts when the employee performs the first principal activity (in this case, getting dressed), and walking to another worksite after the employee performs the first principal activity is necessarily compensable.

The Court also found that the Department of Labor’s regulations supported the notion that both the donning and doffing time and the walking time were compensable. While the DOL’s regulations generally limit the workday from “whistle to whistle,” the Court found that the clear text of the regulations supported the notion that the workday begins and ends with the performance of the first and last “principal activity” by the employee. Though the Court acknowledged that a footnote in the DOL’s regulations was “ambiguous and apparently ambivalent” on the issue, it concluded that the footnote was not sufficient to overcome the clear text of the regulations and the Portal-to-Portal Act itself.

In the Court’s view, the only part of the pre-shift and post-shift process at both plants that was not compensable was the time spent by employees waiting to don the first piece of gear that marks the beginning of the continuous workday. In the Court’s view, “such waiting – which is two steps removed from the productive activity on the assembly line – comfortably qualifies as a preliminary activity” that is not compensable under the FLSA.

Tum et al. v. Barber Foods, Inc., and IBP, Inc. v. Alvarez, 2005 WL 2978311 (2005).

This article appears in the December 2005 issue