IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________________
Nos. 02-1679, 02-1739
_______________________
ABDELA TUM, ET AL.,
Plaintiffs-Appellants, Cross-Appellees,
v.
BARBER FOODS, INC., D/B/A BARBER FOODS,
Defendant-Appellee, Cross-Appellant.
_______________________
On Appeal from the United States District Court
for the District of Maine
_______________________
SUPPLEMENTARY BRIEF FOR THE SECRETARY OF LABOR AS AMICUS
CURIAE SUPPORTING PETITION FOR PANEL REHEARING
AND PETITION FOR REHEARING EN BANC
_______________________
By order dated August 18, 2003, this Court requested the Secretary of
Labor ("Secretary") to supplement her amicus brief filed in support of panel
rehearing and rehearing en banc by stating her position on the
following issues:
1. Assuming arguendo that (as the Secretary contends) the donning and
doffing of required clothes is ordinarily integral to a principal activity,
does such donning and doffing start and end the workday where the donning and
doffing is itself de minimus;
2. On the same arguendo assumption -- that donning and doffing is part
of a principal activity -- is waiting in line to obtain the initial required
clothes part of the principal activity;
3. Assuming that in some situations doffing and donning is covered by
the statute (e.g., required clothes) and in other situations not (e.g.,
non-required clothes), how does the Secretary propose that the employer
calculate hours covered by the statute where, as appears to be so in this case,
employees may vary individually, and from day to day, in the order in which
they stand in line for required or non-required clothes and walk between
different points before actually "punching in" and in which the time spent on
such activities itself varies from one day to the next.
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The Secretary states the following in response.
1. This Court asks in its first question whether, assuming arguendo
that donning and doffing of required clothes is integral to the employees'
principal activity, does the donning and doffing start and end the workday when
it is itself de minimis. We respectfully submit that the concept of de minimis
is not relevant in determining the beginning and end of the "workday."
The only proper measure of when the "workday" begins and ends, thereby
making all time spent in-between compensable "hours worked" under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq., is the
performance of the employees' first and last principal activities. As explained
in our initial brief, the Portal-to Portal Act ("Portal Act"), 29 U.S.C.
254(a), excludes from compensable "hours worked" under the FLSA only those
activities "which occur either prior to the time on any particular workday at
which such employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or activities." 29 U.S.C.
254(a). See also 29 C.F.R. 790.6(a), 790.6(b). Thus, it is an
employee's principal activities (or those activities integral thereto) that
determine what constitutes the "workday" and compensable hours worked. Nothing
in the Portal Act limits or qualifies this definition.
Quite apart from any determination of the "workday," courts have
applied a de minimis principle. The Supreme Court, in Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680 (1946), described the principle as
follows:
We 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) [FLSA overtime provision] must be computed in light
of the realities of the industrial 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. It is only when an employee is required to give up a substantial measure
of his time and effort that compensable working time is involved.
Id. at 692. The Sixth Circuit characterized the Mt.
Clemens decision as "enabl[ing] courts to treat theoretically compensable
work as noncompensable under the FLSA when the amount of such work is
negligible." Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir.
2001).
As the Ninth Circuit stated in the frequently cited case of Lindow
v. United States, 738 F.2d 1057 (9th Cir. 1984), involving application of
the de minimis principle to overtime claims under the FLSA, "as a general rule,
employees cannot recover for otherwise compensable time if it is de
minimis." Id. at 1062 (emphasis added). See also
City of Cincinnati, 236 F.3d at 804 (same); Reich v. Monfort, 144
F.3d 1329, 1333 (10th Cir. 1998) (same); Reich v. New York City Transit
Auth., 45 F.3d 646, 652 (2d Cir. 1995) (same). In other words, the first
step is to determine compensable time, which, as dictated by the Portal Act, is
measured by the "workday." Subsequent to such a determination, if employees
have not been paid for any portion of the work performed during the "workday,"
one looks to whether that "otherwise compensable time" is de minimis and
consequently not ultimately compensable. Thus, the de minimis principle is an
"exception" to otherwise compensable time; it is not determinative of what is
compensable time. See Monfort, 144 F.3d at 1333; Atkins v.
General Motors Corp., 701 F.2d 1124, 1129 (5th Cir. 1983).
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That the concept of de minimis is irrelevant to determining the
beginning and end of the "workday" is made apparent by how most courts have
applied the de minimis principle. Specifically, they have followed the test
laid out by the Ninth Circuit in Lindow, which includes among its
criteria "the size of the aggregate claim" (gauged, at minimum, on a daily
basis).(1) 738 F.2d at 1063. See,
e.g., Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706,
719 (2d Cir. 2001); City of Cincinnati, 236 F.3d at 804-05;
Monfort, 144 F.3d at 1333; Bobo v. United States, 136 F.3d 1465,
1468 (Fed. Cir. 1998); Saunders v. Morrell, No. C88-4143, 1991 WL
529542, at *5 (N.D. Iowa Dec. 24, 1991).(2) This
is important because the aggregation of uncompensated time, for purposes of a
de minimis determination, can only take place after the "workday" is
established. Discrete activities such as, for example, the donning of goggles,
cannot be looked at in isolation and declared to be in and of themselves de
minimis or not, and on that basis be determinative of whether the "workday"
begins. Rather, there must be a determination of the "workday" based on the
employee's first and last principal activities (or those activities that are
integral to the performance of the employee's principal activities). Only then,
after the "workday" is fixed, can a determination be made whether all the
otherwise compensable time within the workday, for which employees were not
compensated, should be compensated based on the Lindow de minimis
criteria.
The Ninth Circuit, however, in its recent decision in Alvarez v.
IBP, Inc., 339 F.3d 894 (9th Cir. 2003), petition for rehearing
filed (Aug. 26, 2003), concluded that the "specific tasks" of donning and
doffing "non-unique" protective gear, such as hardhats and safety goggles,
while integral and indispensable to the employees' principal activities, were
not compensable because they were de minimis "as a matter of law." Id.
at 903-04. In so concluding, the court inexplicably relied on its own
Lindow precedent. Id. As explained above, Lindow does not
support the court's conclusion in Alvarez on this point. Rather,
Lindow specifically sets out criteria for determining whether aggregate
time during the "workday" is de minimis, which necessarily calls for a factual
inquiry.(3) The court in Alvarez thus
misapprehended its own precedent, and thereby misapplied the concept of de
minimis to discrete activities as a matter of law. This, in turn, allowed the
Ninth Circuit to treat as noncompensable "the de minimis time
associated with the donning and doffing of non-unique protective gear."
Alvarez, 339 F.3d at 904. The court was in error on this point.
In sum, in stating what is excludable from compensable "hours worked"
under the FLSA, the Portal Act points to those activities occurring prior to
the employee's first principal activity of the "workday" and subsequent to the
last principal activity of the "workday." See 29 U.S.C. 254(a). Thus,
compensable "hours worked" under the FLSA are delimited by the "workday," which
in turn is determined by the employee's first and last principal activities.
Nowhere in the Portal Act, the Secretary's interpretive regulations, or the
applicable caselaw is the "workday," as defined by those starting and ending
principal activities, in any way limited by the de minimis concept. In fact, it
cannot be so limited in light of the correct application of the de minimis
principle, which applies only after the "workday" is properly
established.
2. This Court also requests the Secretary's position on whether,
assuming arguendo that donning and doffing is part of an employee's principal
activity, waiting in line to obtain the initial required clothing also is part
of the principal activity. As discussed below, Supreme Court and appellate
court cases, the Secretary's interpretive regulations, and the legislative
history of the Portal Act all support the conclusion that waiting in line to
obtain the first item of required clothing is an integral and indispensable
part of an employee's principal activity and, accordingly, is compensable as
"hours worked" within the meaning of the FLSA and Portal Act.
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Whether waiting time is compensable "hours worked" within the meaning
of the FLSA depends on whether an employee is "waiting to be engaged" or
"engaged to wait." See generally,
Skidmore v. Swift & Co., 323 U.S. 134, 136 (1944). In
Skidmore, 323 U.S. at 136, the Court stated that "hours worked" under
the FLSA is not limited to active labor: "No principle of law found either in
the statute or in Court decisions precludes waiting time from also being
working time," and "[f]acts may show that the employee was engaged to wait, or
they may show that he waited to be engaged." Accord Owens v.
Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 350-51
(9th Cir. 1992). See also 29 C.F.R. 785.7, 785.14; The Fair
Labor Standards Act § 8.II.B (Ellen C. Kearns and Monica Gallagher
eds. 1999).
Thus, "idle" or waiting time is compensable "work" under the FLSA where
it is controlled by the employer and is spent predominantly for the employer's
benefit. See, e.g., Armour & Co. v. Wantock, 323 U.S.
126, 133 (1944) (a companion case to Skidmore).(4) The Secretary's interpretive regulations
explain that an employee is "engaged to wait," and therefore performing work,
when the periods of inactivity are unpredictable and of short duration:
In either event the employee is unable to use the time effectively for
his own purposes. It belongs to and is controlled by the employer. In [such]
cases waiting is an integral part of the job. The employee is engaged to
wait.
29 C.F.R. 785.15 (citations omitted). Under these governing legal
principles, the Ninth Circuit in Alvarez recognized that the time spent
by employees waiting in line to obtain protective clothing constitutes "work"
under the FLSA. See 339 F.3d at 902 ("Plaintiffs' donning and doffing,
as well as the attendant retrieval and waiting, constitute 'work' under
Muscoda and Armour's catholic definition: pursued necessarily and
primarily for the benefit of the employer, . . . these tasks are activity,
burdensome or not, performed pursuant to IBP's mandate for IBP's benefit as an
employer.") (internal quotations and citations omitted).
Even where wait time constitutes "work" under the FLSA, however, it
nevertheless may not be compensable if it is preliminary or postliminary
activity within the meaning of the Portal Act. See Vega v.
Gasper, 36 F.3d 417, 425 (5th Cir. 1994) ("Wait time is compensable when it
is part of a principal activity, but not if it is a preliminary or postliminary
activity."). See also 29 C.F.R. 790.8(c). But, the Portal Act was
not intended to limit FLSA coverage of work that is integral to the performance
of an employee's principal activities, regardless of whether that work occurs
before or after an employee's regular shift. See Steiner v.
Mitchell, 350 U.S. 247, 256 (1956) ("[A]ctivities 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 [FLSA] 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).").
Thus, in Steiner, the Supreme Court essentially prescribed a
functional test that requires an analysis of the relatedness of the activity at
issue to the primary duties of the job.(5) Using
a similar analysis, the Supreme Court held in Mitchell v. King Packing
Co., 350 U.S. 260 (1956), a companion case to Steiner, that the
knife-sharpening activities of the defendant meatpacking company were an
integral and indispensable part of the principal activities for which they were
employed and thus not "preliminary" or "postliminary" activities excluded from
compensability under the Portal Act. Significantly, in reaching its conclusion,
the Court rejected the lower court's concern that if all activity indispensable
to the performance of productive work is excluded from the terms preliminary
and postliminary, the intended effect of the Portal Act would be negated.
See id. at 261. See also Alvarez, 339 F.3d
at 902-03 ("To be 'integral and indispensable,' an activity must be necessary
to the principal work performed and be done for the benefit of the employer.").
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The Fifth Circuit also applied a functional analysis in Vega v. Gasper.
Vega involved farmworkers who were transported to fields by their
employer; they sought compensation for the time that they spent waiting for the
sun to rise before starting their chile-picking duties. See 36 F.3d at
423. The court stated that "if the workers were on duty in the morning so as to
get an early start for their employer's benefit (e.g., to assure that
work would start promptly at sunrise) or because of Gasper's scheduling, the
morning wait time is a compensable principal activity." Id. at 426
(citing Fields v. Luther, No. JH-84-1875, 1988 WL 59963, *14-*15 (D. Md.
May 4, 1988) (time spent by farmworkers waiting in fields for dew to dry is
compensable because workers were on duty)).
Under the Steiner analysis, the time spent by Barber Foods'
employees waiting in line to obtain their initial protective clothing is
integral to their principal activities. To perform their processing jobs, the
employees must don certain required clothing. Prior to donning the clothing,
moreover, the employees must arrive at the processing plant before their shifts
to wait in lines to obtain the required clothing. The clothing must be obtained
and donned before the employees are allowed to punch in to the computerized
time-keeping system at the entrances to the production floor.(6) Because the waiting is controlled by, and done
for the benefit of, Barber Foods, and because obtaining protective clothing is
necessary for the performance of the employees' processing jobs, the waiting is
integrally related to their principal activities under Steiner's
functional test. See Alvarez, 339 F.3d at 904 (waiting and
walking connected with the employees' donning and doffing activities is
integrally related to their principal activities and, therefore, constitutes
compensable work under the FLSA and Portal Act).
The conclusion that the necessary waiting time associated with donning
and doffing activities is compensable under the Portal Act as integral to the
employees' principal activities also is compelled by the Secretary's
interpretive regulations. Although the regulations do not specifically address
the compensability of time spent waiting to pick up required protective
clothing, they do distinguish between waiting time before the commencement of
work that occurs when an employee voluntarily arrives earlier than required or
expected, which is not compensable, and waiting time that occurs when an
employee arrives at work when required, "but for some reason beyond his control
there is no work for him to perform until some time has elapsed," which is
compensable. See 29 C.F.R. 790.7(h). This interpretive regulation cites
to the legislative history of the Portal Act, which makes clear that the Portal
Act was not intended to apply to situations where employees are required to be
at their place of employment, but for reasons beyond their control are unable
to begin their productive work. Id. (citing 93 Cong. Rec. 2298 (1947)
(colloquy between Senators Cooper and McGrath)).
For example, in Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th
Cir. 1990), assembly line workers at a frozen food packaging facility were
required to arrive at work at a specified time, place their names on a sign-in
sheet, and wait before they began actual productive work. Relying on 29 C.F.R.
790.7(h), the Fifth Circuit concluded that the waiting time was compensable,
stating that "[w]here an employee is required by his employer to report to work
at a specified time, and the 'employee is there at that hour ready and willing
to work but' is unable to begin work for a period of time for some reason
beyond his control, the employee is engaged to wait and is entitled to be paid
for the time spent waiting." Id. at 1414. Similarly, in Fox v. Tyson
Foods, Inc., No. CV-99-TMP-1612-M (N.D. Ala. Feb. 14, 2001) (Putnam, Mag.
J.) (pending on review before district court) (Attachment A), poultry workers
sought compensation for time spent donning, doffing, and cleaning protective
gear and for pre-shift time spent waiting to obtain smocks. Slip op. at 8-9.
The magistrate judge concluded that all these activities were compensable as
integral and indispensable to the employees' principal activities. Id.
at 26-30. See also Reich v. IBP, Inc., 820 F. Supp. 1315,
1324 (D. Kan. 1993) ("We see no distinction between actually sharpening knives
and waiting to obtain sharpened knives -- the benefit to IBP was the same."),
aff'd on other grounds, 38 F.3d 1123 (10th Cir.
1994).
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Because the donning and doffing of clothing necessary to the
performance of an employee's principal activity is integrally related to that
principal activity, the necessary waiting time connected with obtaining such
clothing also is integrally related to the employee's principal activity,
regardless of whether the waiting time occurs before or after the employees'
regular work shift. See Steiner, 350 U.S. at 256.(7)
3. This Court's third question
addresses an important practical issue: how can an employer track and record
the first principal activity that triggers the start of the workday, when the
timing of that activity can vary by individual and from day to day?
A basic principle under the FLSA is that employers are responsible for
the recording of time. As the Supreme Court observed in Mt. Clemens Pottery
Co., 328 U.S. at 687, "it is the employer who has the duty under §
11(c) of the Act [29 U.S.C. 211(c)] to keep proper records of wages, hours and
other conditions and practices of employment." Accordingly, the employer must
structure its operations in a manner that permits the accurate recording of
this time. Cf. Vega, 36 F.3d at 427 (where employees are forced
to wait because of the inefficiencies of the employers' payroll system, that
waiting time is compensable).
Here, Barber Foods has structured its operations in a manner that
precludes the possibility of accurate timekeeping. While employees are paid
from the moment they clock in at the entrances to the production floor,
see Tum, 331 F.3d at 4, Barber Foods mandates that they don
required equipment before they clock in and doff this equipment after they
clock out. The company also allows its employees to don non-required equipment
after clocking in. See id. at 3. Barber Foods thus exercises its
control over the workforce to assure, if inadvertently, that the time employees
take to perform their first principal activity is not captured in its records.
If, on the other hand, Barber Foods modified its current procedures, it
could accurately capture time from the first principal activity to the last
principal activity. The company could require its employees to don their
optional equipment prior to clocking in, and to don their required
equipment (that is, clothing required by law, by rules of the employer, or by
the nature of the work) after the clock-in. This procedure would capture the
time taken to perform the first principal activity, and those activities
performed thereafter, while excluding noncompensable activity from recorded
time. In fact, Barber Foods already has a computerized time keeping system that
uses time clocks that are located at the entrances and exits to the production
floor. See Tum, 331 F.3d at 4. It is certainly within Barber
Foods' control to move its racks and receptacles for required clothes to ensure
that employees don and doff such clothing after clocking in and before clocking
out. Alternatively, the company could move the time clocks to achieve the same
purpose. Barber Foods could also use time clocks that do not allow employees to
clock in prior to the appropriate time, enabling the company to better control
its time recording processes.
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The Secretary believes that these changes are feasible because at least
one large poultry processing firm already has implemented these types of
procedures. In May 2002, Perdue Farms, Inc.(8)
entered into a consent judgment with the Secretary in which Perdue agreed to
record and pay for any time integral and indispensable to the work of its
production line employees, including the donning, doffing, and sanitizing of
any clothing or equipment required by law, by Perdue, or by the nature of the
job. See Perdue Consent Judgement (Attachment C). Perdue also agreed to
record and pay for the time employees spend walking or waiting after their
first principal activity has been performed. See Perdue side agreement
(Attachment D).
The side agreement to Perdue's consent decree makes clear that
compliance merely requires that an employer structure its operations so that
employees will clock in prior to putting on equipment that is required to be
donned at the plant, and clock out after taking off that equipment.(9) Accordingly, after entering into the consent
decree Perdue modified its operations by, among other things, putting its time
clocks on or near the production floor (waterproofing them where necessary);
establishing or moving racks and receptacles holding required gear so that
employees can don equipment only after clocking in and remove it prior to
clocking out; moving or eliminating supply rooms at which employees had waited
for supplies; experimenting with different kinds of gear which may be quicker
to put on and take off; and obtaining computerized time recording equipment
which prevents clocking-in prior to a time set by Perdue.
In short, with relatively straightforward modifications that already
have proven effective by its competitor, Barber Foods can record and pay its
employees for all of the time spent between their first principal activity and
last principal activity, as defined in the Portal Act. Indeed, as the panel
itself recognized, the procedures necessary to properly pay its employees are
completely within the control of Barber Foods. See Tum, 331 F.3d
at 6.
Additionally, consistent with the practical concerns of this Court, it
is important to note that the donning and doffing of required clothing is not
always compensable. The Secretary has created a bright-line test that
distinguishes between the donning and doffing of clothing that must be done at
work and the donning and doffing of clothing that may be done elsewhere. The
putting on and taking off of clothing that is required to be done on the
employer's premises is compensable; on the other hand, where the employee has
the option of donning and doffing required clothing at home, the activity is
not compensable.
Thus, the Secretary's regulations specifically provide that "where the
changing of clothes on the employer's premises is required by law, by
rules of the employer, or by the nature of the work," the clothes changing is
compensable. 29 C.F.R. 790.8(c) and n.65 (emphasis added). Moreover, the Field
Operations Handbook ("FOH"), which contains official guidance for the conduct
of FLSA investigations by the Department of Labor's Wage and Hour Division,
provides that changing required clothing at home is not compensable.(10)
The Secretary's position in this regard has been followed by the
courts. For example, in Apperson v. Exxon
Corp., No. S-78-192, 1979 WL 1979, *8 (E.D. Cal. Feb. 7, 1979), the court
held that required clothes changing need not be compensated unless the employer
requires that it be done at the worksite "or unless the employee cannot safely
wear such clothing home at the end of the day." See also
Baylor v. United States, 198 Ct. Cl. 331 (1972) (changing into uniforms
that could not be worn to or from guards' homes was integral to performance of
their principal activities); Riggs v. United States, 21 Cl. Ct. 664
(1990) (getting protective clothing, appearing at roll call, and putting
clothing away after inspection was integral to firefighters' principal
activities where the equipment could not be taken from the premises).
Compare Bagrowski v. Maryland Port Auth., 845 F. Supp. 1116, 1121
n.6 (D. Md. 1994) (putting on uniforms at work was not compensable where "many
officers came to work in their uniforms and nothing prevented the plaintiffs
from doing so").
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4. We therefore urge this Court to accept the
principle, as set out in the Portal Act, that the "workday" begins and ends
based on an employee's first and last principal activities, not on whether such
first and last principal activities are themselves de minimis. We further urge
this Court to conclude that waiting in line to obtain the initial required
protective gear is integrally related to the employees' principal activities,
and is thus compensable. Finally, there are no practical obstacles to Barber
Foods compensating its employees for all compensable time, because the manner
in which the company sets up its operations are completely within its
control.
Thus, for these reasons, and those set forth
in the Secretary's initial amicus brief, the Secretary requests that this Court
grant panel rehearing or rehearing en banc.
Respectfully submitted,
HOWARD M. RADZELY
Acting Solicitor of Labor
STEVEN J. MANDEL
Associate Solicitor
JONATHAN M. KRONHEIM
Counsel for Trial Litigation
ELLEN R. EDMOND
Senior Attorney
PAUL L. FRIEDEN
Counsel for Appellate Litigation
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Suite N-2716
Washington, D.C. 20210
(202) 693-5555
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CERTIFICATE OF
SERVICE
I certify that copies of this supplementary
brief for the Secretary of Labor as amicus curiae have been served on September
15, 2003, by deposit in first-class mail, on the following:
Timothy B. Fleming, Esq.
Lori B. Kisch, Esq.
Gordon, Silberman, Wiggins & Childs,
P.C.
7 Dupont Circle, N.W.
Suite 200
Washington, D.C. 20036
Graydon G. Stevens, Esq.
Kelly, Remmel & Zimmerman
53 Exchange St.
P.O. Box 597
Portland, Maine 04112
David R. Wylie, Esq.
D. Christopher Lauderdale, Esq.
Haynsworth Baldwin Johnson & Greaves
LLC
P.O. Box 10888
Greenville, South Carolina 29603
JOHN S. CASLER
Deputy Regional Solicitor
(617) 565-2500
1. The Ninth Circuit in Lindow did not state
definitively what it meant by aggregating time. It did state that "[a]n
important factor in determining whether a claim is de minimis is the
amount of daily time spent on additional work." 738 F.2d at 1062. The Ninth
Circuit, however, also cited to other cases where time has been aggregated
beyond a daily basis (ranging up to three years). Id. at 1063 ("Courts
have granted relief for claims that might have been minimal on a daily basis
but, when aggregated, amounted to a substantial claim."). The court also
pointed to cases where time was aggregated "in relation to the total sum or
claim involved in the litigation." Id. See also
Monfort, 144 F.3d at 1334 (post-Lindow case where court stated
that "[i]t is also appropriate to consider an aggregate based on the total
number of workers"). The Secretary does not comment here as to precisely how
one should aggregate time other than to say that it should at minimum be done
on a daily basis.
2. The Ninth Circuit stated that "the practical
administrative difficulty of recording small amounts of time for payroll
purposes" should also be used to determine if time is de minimis.
Lindow, 738 F.2d at 1062. See also 29 C.F.R. 785.47. And
the court said that consideration should further be given to "whether the
claimants performed the work on a regular basis." Lindow, 738 F.2d at
1063.
3. The Secretary takes no position on whether the
total time in the instant case is de minimis in accordance with the
Lindow criteria.
4. Armour and Skidmore thus clarify
the Supreme Court's interpretation of "work" in Tennessee Coal, Iron &
R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944) -- physical or
mental exertion (whether burdensome or not) that is controlled or required by
the employer and is pursued necessarily and primarily for the benefit of the
employer and his business.
5. See also Barrentine v.
Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984) ("The
only activities excluded from FLSA coverage are those undertaken 'for [the
employees'] own convenience, not being required by the employer and not being
necessary for the performance of their duties for the employer.'") (quoting
Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976)),
cert. denied, 471 U.S. 1054 (1985); 29 C.F.R. 790.8(b) ("The term
'principal activities' includes all activities which are an integral part of a
principal activity."); and 29 C.F.R. 790.8(c) ("Among the activities included
as an integral part of a principal activity are those closely related
activities which are indispensable to its performance.").
6. The panel recognized implicitly that the amount
of time that employees spend waiting for their required sanitary and protective
gear is within the control of Barber Foods. In rejecting the compensability of
walking time, the panel stated that "if Barber Foods were to dispense all of
the gear from one point, then it could eliminate Employees['] claim for walk
time between dispensing areas." Tum v. Barber Foods, Inc., 331 F.3d 1, 6
(1st Cir. 2003). Similarly, if Barber Foods were to provide easier access to
the clothing tubs or more attendants handing out gear at the equipment cage
window, the time spent by employees waiting to obtain their gear would be
lessened.
7. Of course, once the employees don their first
piece of required protective clothing, any subsequent waiting time (where not
long enough for the employees to use effectively for their own purposes) would
be compensable as part of the employees' workday. As the Secretary noted in her
initial amicus brief and in response to this Court's first question above, the
Portal Act does not apply to any time spent between the performance of an
employee's first and last principal activities. Even absent application of the
"first principal activity" principle, however, waiting to obtain required
clothes is not excluded from compensability under the Portal Act because it is
integral to the employees' principal activities.
8. As of August 2001, Perdue Farms was the fourth
largest poultry processor in the nation and the largest in the Northeast.
See MeatPoultry.com, Article ID 48104 (Attachment B).
9. Significantly, the Wage and Hour Division also
has entered into agreements with Honda Manufacturing of Alabama and
Mercedes-Benz U.S. International that require recording and payment for all
time worked from the first principal activity to the last principal activity as
described above. Prior to these agreements, those firms, like Perdue, did not
pay for their employees' donning and doffing time. Since the agreements entered
into with the Secretary, these companies have made changes in their corporate
practices to achieve compliance. See Attachment E.
10. FOH section 31b13 provides:
Changing clothes at home.
Employees who dress to go to work in the morning are not working while
dressing even though the uniforms they put on at home are required to be used
in the plant during working hours. Similarly, any changing which takes place at
home at the end of the day would not be an integral part of the employees'
employment and is not working time.
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