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
_______________________
BRIEF FOR THE SECRETARY OF LABOR
AS AMICUS CURIAE
SUPPORTING PETITION FOR PANEL
REHEARING
AND PETITION FOR REHEARING
EN BANC
_______________________
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TABLE OF CONTENTS
STATEMENT OF THE SECRETARY OF LABOR
STATEMENT OF THE CASE
ARGUMENT
CONCLUSION
CERTIFICATE OF SERVICE
STATEMENT OF THE SECRETARY OF
LABOR
Pursuant to Federal Rule of Appellate
Procedure 29, the Secretary of Labor ("Secretary") submits this brief as amicus
curiae in support of the argument that the pre- and post-shift time employees
spent waiting and walking after their first principal activity, and before
their last principal activity, is compensable work under the Fair Labor
Standards Act ("FLSA"), because it is a part of the employees' "workday." Such
time therefore is not excluded from "hours worked" under section 4(a) of the
Portal-to-Portal Act ("Portal Act"), 29 U.S.C. 254(a). The relevant provision
of the Portal Act excludes only those activities performed by employees before
the beginning of the "workday" or after the end of the "workday." The "workday"
is marked by the commencement and cessation of the performance of the
employees' principal activity or activities. See 29 U.S.C. 254(a). The
Secretary's interpretive regulations clearly support this result. See 29
C.F.R. Parts 785 and 790. Because the panel misapprehended the plain meaning of
the Portal Act and misconstrued the Secretary's interpretive regulations, the
Secretary believes that panel rehearing is appropriate in the first instance.
See Fed. R. App. P. 40(a)(2). Should the panel decline to rehear the
case, the Secretary believes that rehearing en banc is warranted
because the case involves a question of "exceptional importance." See
Fed. R. App. P. 35(b)(1)(B).(1)
STATEMENT OF THE
CASE
1. Depending upon their particular job duties,
the poultry processing employees in this case are required to wear lab coats,
hairnets, earplugs, safety glasses, steel-toed boots, bump hats, back belts,
aprons, vinyl gloves, and hard hats. Tum v. Barber Foods, Inc., d/b/a Barber
Foods, 2003 WL 21270602, at *1-*2 (1st Cir. June 3, 2003). The
employer generally requires the employees to put on these items prior to their
punching in to a computerized time-keeping system at the entrances of the
production floor, and the items are taken off only after the employees punch
out at the exits of the production floor. Id. The employees obtain many
of these items from the equipment cage or from tubs located in the hallway
between the entranceway and the equipment cage. Id. at *2. Many of these
items are dropped off in receptacles that are placed in the hallway leading
from the production floor exits to the plant exits. Id. In the words of
the Court, "[e]mployees may have to wait to obtain and dispense with clothing
and equipment. At busier times, there may be lines at the coat racks, glove
liner bins, and [equipment] cage window. There may also be a line at the time
clocks." Id.
2. A panel of this Court (Torruella,
Boudin, Lynch) rejected the employees' argument that the Portal Act excludes
from compensable activities only that walking which occurs either before
an employee commences his first principal activity (obtaining an initial piece
of clothing or equipment required by the employer or by United States
Department of Agriculture regulations), or after he performs his last principal
activity (disposing of clothing and equipment after the employee punches out).
Id. at *4. Rather, relying on the Secretary's interpretive regulations
at 29 C.F.R. 790.7(g) n.49,(2) the panel
concluded that the walking time in question comes within the Portal Act because
"walking time is not automatically excluded from the purview of the
Portal-to-Portal Act by virtue of following compensable doffing." Id.
Since, the panel stated, employees concede that walking to the place where the
gear is first picked up is exempted by the Portal Act from being compensable
work, "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. It
would be nonsensical for us to conclude that the compensability of walk time
depended on whether they picked up their gear at one bin or two. Employers
could prevent compensability for walk time by placing all of the items at one
location instead of at a few locations in close proximity."
Id.
Again, in reliance on the Secretary's
interpretive regulations (29 C.F.R. 790.7(d), 790.7(f), and 790.7(g)), the
panel concluded that Congress intended for most types of walking to be
noncompensable. Id. at *5. "The examples of walking that the Code [of
Federal Regulations] describes as not preliminary or postliminary fit into a
narrow category of walking in which the act is part of the actual work
activity," such as the logger who carries heavy equipment (as opposed to
ordinary hand tools) to a cutting area in the woods. Id. The panel
analogized the walking in this case to walking while carrying ordinary hand
tools, and therefore concluded that "the time spent walking to gather gear
before punching in, walking to the time clocks, and walking to dispose of gear
after punching out falls under the Portal-to-Portal Act as preliminary and
postliminary activity." Id.
The panel further concluded that Barber Foods
need not compensate its employees for time spent waiting in line for any
required clothing or equipment or to punch in at the time clocks. Id. at *5-*6.
The panel again referred to the Secretary's interpretive regulations in
reaching this conclusion -- 29 C.F.R. 790.8. Id. It stated that even
when changing clothes may be deemed a principal activity, checking in and out
and waiting in line to do so would not ordinarily be considered integral to the
principal activity. Id. at *5. With regard to waiting in line for
required gear, the panel stated "that a short amount of time spent waiting in
line for uniforms is the type of activity that the Portal-to-Portal Act
excludes from compensation as preliminary." Id. at *6.
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ARGUMENT
THE TIME SPENT BY THE POULTRY PROCESSING
EMPLOYEES WAITING AND WALKING AFTER PERFORMING THEIR FIRST PRINCIPAL ACTIVITY
AND BEFORE PERFORMING THEIR LAST PRINCIPAL ACTIVITY IS COMPENSABLE "HOURS
WORKED" BECAUSE IT WAS TIME SPENT DURING THE COURSE OF THE EMPLOYEES' "WORKDAY"
The plain language of the Portal Act and the
import of the Secretary's interpretive regulations when read in their entirety
require that the first and last principal activities performed by an employee
mark the beginning and end of his "workday," and all time spent between the
performance of those activities, including walking and waiting time, is
compensable.(3)
The Portal Act excludes from compensable
"hours worked" under the FLSA only those activities, including walking,(4) "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). The statutory language of the Portal Act is
clear. The "workday," as measured by the time between the performance of an
employee's first principal activity and the performance of an employee's last
principal activity of the day, determines compensable "hours
worked."
The Senate Report that accompanied the passage
of the Portal Act in 1947 illustrates this bedrock principle. It states that
"[a]ny activity occurring during a workday will continue to be
compensable in accordance with the existing provisions of the [FLSA]." S. Rep.
No. 48, at 48 (80th Cong., 1st Sess.) (emphasis added). The Report defines
"workday" as
that period of the workday between the
commencement by the employee, and the termination by the employee, of the
principal activity or activities which such employee was employed to perform.
[Section 4] relieves an employer from liability or punishment under the
[FLSA] on account of the failure of such employer to pay an employee minimum
wages or overtime compensation, for activities of an employee engaged on or
after [1947], if such activities take place outside of the hours of the
employee's workday.
Id. at 46-47 (emphases added); see
also 93 Cong. Rec. 4269 (statement of Senator Wiley).
The interpretive regulations at 29 C.F.R. Part
785 ("Hours Worked") and Part 790 ("General Statement As To The Effect Of The
Portal-To-Portal Act Of 1947 On The Fair Labor Standards Act Of 1938") adhere
to the "workday" principle.(5) Those regulations
state that "[s]ection 4 of the Portal Act does not affect the computation of
hours worked within the 'workday' proper . . . ." 29 C.F.R. 790.6(a);
see also 29 C.F.R. 785.9(a) (same). Indeed, consistent with the
text of the Portal Act, the interpretive regulations state that "[p]eriods of
time between the commencement of the employee's first principal activity and
the completion of his last principal activity on any workday must be included
in the computation of hours worked to the same extent as would be required if
the Portal Act had not been enacted." 29 C.F.R. 790.6(a) (footnote omitted).
Furthermore, the interpretive regulations define "workday," as used in the
Portal Act, as "the period between the commencement and completion on the same
workday of an employee's principal activity or activities. . . . includ[ing]
all time within that period whether or not the employee engages in work
throughout all of that period." 29 C.F.R. 790.6(b); see also 29
C.F.R. 785.38 (addressing the compensability of "travel that is all in the
day's work").
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The case law, relying on the Secretary's
interpretive regulations, faithfully applies the "workday" concept. Thus, in
United Transportation Union Local 1745 v. City of Albuquerque, 178 F.3d
1109, 1119 (10th Cir. 1999), the court, referring to the definition
of "workday" in 29 C.F.R. 790.6(b), concluded that the time spent by bus
drivers on a shuttle service transporting them between the ending point of
their first shift in the morning and the garage, and then between the garage
and the starting point of their second shift in the evening (the shifts being
separated by a non-compensable off-duty period), was not excluded as ordinary
commuting time under the Portal Act. Rather, that travel time was compensable
because it took place during a single "workday." Id. By contrast, the
court held that the time the drivers spent shuttling to their first bus run and
from their last bus run of the day was "classic commuting-to-work time," and
thus was excluded from compensable "hours worked" under the Portal Act.
Id. at 1120.
In Mireles v. Frio Foods, Inc., 899
F.2d 1407, 1414 (5th Cir. 1990), the court, relying upon the
Secretary's definition of "workday" in 29 C.F.R. 790.6(b), held that employees
required to arrive at work at a specific time to sign in and then wait until
the beginning of productive work should be compensated for their waiting time.
As the court stated, "[p]laintiffs are not seeking compensation for periods of
time spent waiting outside the workday. Rather, plaintiffs contend that they
are entitled to pay for time spent waiting during the workday that they are not
able to use effectively for their own purposes." Id. (footnote omitted).
Finally, in Dole v. Enduro Plumbing,
Inc., 30 WH Cases (BNA) 196, 200 (C.D. Cal. Oct. 16, 1990), the district
court, relying on the "express terms" of the Portal Act and 29 C.F.R. 785.38,
stated that where an employee is required to arrive at a designated place to
receive instructions or pick up tools, arrival at that designated place
triggers the start of the "workday." Any subsequent hours spent up to the last
principal activity constitute compensable "hours worked" under the FLSA.
Id. The court specifically explained that all work time during the
"workday" is compensable -- "The express terms of said Section 4(a) of the
Portal Act make clear that activities mentioned in subsections (1) [walking and
travel time] and (2) [activities that are preliminary or postliminary to the
principal activities] of section 4(a) cannot be excluded from hours worked when
they occur after the commencement of any principal activity or activities for
the workday and before the cessation of all the principal activity or
activities for the workday." Id.
By culling from the Secretary's interpretive
regulations isolated language, the panel failed to recognize the overriding
dictate of the regulations -- that the reach of the Portal Act is limited by
the "workday" principle. For example, to exclude walking time from being
compensable, the panel relied on footnote 49 of 29 C.F.R. 790.7(g), which
states that because washing up after work or changing clothes may be
compensable as an integral part of the employee's principal activity "does not
necessarily mean . . . that travel between the washroom or clothes-changing
place and the actual place of performance of the specific work the employee is
employed to perform, would be excluded from the type of travel to which section
4(a) [of the Portal Act] refers." But that footnote comes under section 790.7,
headed "'Preliminary' and 'postliminary' activities," and stands for nothing
more remarkable than the proposition that the travel discussed may be
noncompensable if the preceding activity at the washroom or the
clothes-changing place is, under the particular circumstances, not considered a
principal activity. This is the only reasonable construction when the
interpretive regulations are read as a whole, as they must be. Cf.
Cablevision of Boston, Inc. v. Public Improvement Commission of the City of
Boston, 184 F.3d 88, 101 (1st Cir. 1999) (statute must be
examined as whole).(6)
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Similarly, the panel's reliance on 29 C.F.R.
790.7(d) is misplaced. That interpretive regulation provides that the time a
logger spends walking into the woods carrying a portable power saw, as opposed
to ordinary hand tools, is compensable because the walking "is not segregable
from the simultaneous performance of his assigned work (the carrying of
equipment, etc.) and it does not constitute travel to and from the actual place
of performance of the principal activities he is employed to perform." 29
C.F.R. 790.7(d) (internal quotation marks omitted). Thus, section 790.7(d) does
not address employees who must walk after performing their first
principal activity, the issue in the present case. Rather, that provision (and
the examples of loggers who carry either heavy equipment or ordinary hand tools
"into the woods") only describes those situations when commuting time
independently would or would not be considered a compensable principal
activity, thereby starting the "workday."(7)
Other interpretive regulations cited by the panel -- 29 C.F.R. 790.7(g) and 790.8(c) -- do not
support its conclusion. In fact, those interpretive regulations identify
activities that normally or ordinarily would not be considered
principal activities, and thus would be considered "preliminary" or
"postliminary" in nature (i.e., outside the purview of the "workday") and
subject to the Portal Act. Again, this is consistent with the "workday"
principle set forth in the Portal Act, the interpretive regulations, and this
brief by the Secretary.(8) The panel assumed for
purposes of its decision that the donning and doffing of required clothing is
an integral part of employees' principal activity and thus compensable, 2003 WL
21270602, at *4-*5, and therefore should have ruled that time spent by
employees between the beginning and end of the performance of these activities
(except for bona fide meal periods and those periods during which an employee
is completely relieved from duty and which are long enough to enable the
employee to effectively use the time for his own purposes) was compensable, in
accordance with the "workday" concept.
Finally, the panel, in rejecting the
compensability of walking time, 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." But this is precisely the point. The
beginning and end of the "workday," i.e., when the first and last principal
activity occur, are completely within the employer's control. Thus, the walking
and waiting done by the employees between these activities are also under the
direct control of the employer, and are done for the employer's benefit. The
employees should not be denied compensation because the employer could
have arranged the "workday" in a different manner, so as to avoid some of
the walking and waiting time after the first principal activity. Until such
time as the employer does arrange the "workday" differently, the employees
should be paid for those activities performed between their first and last
principal activities.
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CONCLUSION
For the foregoing reasons, the Secretary
supports panel rehearing. Should the panel deny rehearing, the Secretary
believes that rehearing en banc is warranted.
Respectfully submitted,
HOWARD M. RADZELY
Acting Solicitor of Labor
STEVEN J. MANDEL
Associate Solicitor
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
CERTIFICATE OF
SERVICE
I certify that copies of this Brief for the
Secretary of Labor as Amicus Curiae have been served on June 17, 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
JOHN S. CASLER
Deputy Regional Solicitor
(617) 565-2500
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1. The Secretary recently presented this argument,
as amicus, in the Ninth Circuit in a case that raises the issue of walking and
waiting that takes place within the "workday" in the context of a meatpacking
plant -- Alvarez v. IBP, Inc., Nos. 02-35042, 02-35110 (case pending).
Thus, this issue arises in both the poultry and meatpacking industries, and may
have more general application.
2. As explained in detail
infra, the Secretary here argues that the panel's reliance on the
interpretive regulations to reach its conclusion was misplaced.
3. Of course, bona fide meal periods, 29 C.F.R.
785.19, as well as "[p]eriods during [the workday in] which an employee is
completely relieved from duty and which are long enough to enable him to use
the time effectively for his own purposes," 29 C.F.R. 785.16(a), are not "hours
worked."
4. The activities specified by the Portal Act as
noncompensable are "(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." 29 U.S.C. 254(a)(1) and
(2).
5. These interpretive regulations "constitute a body
of experience and informed judgment to which courts and litigants may properly
resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944); see also United States v. Mead, 533 U.S. 218,
227-28 (2001). The interpretive regulations at 29 C.F.R. Part 790, first
promulgated by Congress at 12 Fed. Reg. 7655 (Nov. 18, 1947), were ratified by
Congress in 1949 when former section 16(c) of the FLSA, 29 U.S.C. 216(c), was
enacted. See Steiner v. Mitchell, 350 U.S. 247, 255 n.8 (1956)
(quoting section 16(c) to the effect that existing Wage-Hour regulations and
interpretations were to remain in effect unless inconsistent with the
amendments, 29 U.S.C. 208, 63 Stat. 920 (1949) (note)).
6. To the extent there is any ambiguity in the
regulations, the Secretary's interpretation of them is entitled to deference if
such interpretation is reasonable. See Christensen v. Harris
County, 529 U.S. 576, 588 (2000); South Shore Hospital, Inc. v.
Thompson, 308 F.3d 91, 98-100 (1st Cir. 2002).
7. Unlike the ordinary hand tools presumably brought
by the logger from home into the woods, the items picked up by the poultry
workers for donning in this case were located at the workplace. The Secretary
would not argue that the time spent by poultry employees donning clothes at
home was the first principal activity of their day, and would not argue that
the time spent traveling to work thereafter was compensable as part of the
employees' "workday." Thus, if poultry workers could put on gear at home and
merely had to arrive at the production line to start their shift, they would
not be compensated until they were required to arrive at the production line.
8. Some of the activities mentioned by the
interpretive regulations as not "normally" or "ordinarily"
principal activities are checking in and out and any attendant waiting in line,
changing clothes, washing up or showering, and waiting in line to receive pay
checks. See 29 C.F.R. 790.7(g) and 790.8(c). It is important to note,
however, that the interpretive regulations state that "Congress intended the
words 'principal activities' to be construed liberally," 29 C.F.R. 790.8(a),
and that, for example, "[i]f an employee in a chemical plant . . . cannot
perform his principal activities without putting on certain clothes, changing
clothes on the employer's premises at the beginning and end of the workday
would be an integral part of the employee's principal activity." 29 C.F.R.
790.8(c) (footnotes omitted); see also Steiner, 350 U.S.
at 256 (concluding that the employees' required changing of clothes in a
battery plant was "an integral and indispensable part of the principal activity
of the[ir] employment . . . ."); Secretary of Labor v. E.R. Field, Inc.,
495 F.2d 749, 751 (1st Cir. 1974) ("[T]he Portal Act does not cover
'any work of consequence performed for an employer.'") (quoting 29 C.F.R.
790.8(a)). As the interpretive regulations make clear, "an activity which is a
'preliminary' or 'postliminary' activity under one set of circumstances may be
a principal activity under other conditions." 29 C.F.R. 790.7(h) (footnote
omitted).
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