Under federal labor law, America’s hourly wage workers have a legal right to be paid for all job activities that occur during the workday. But that is not necessarily an easy thing to calculate: It depends on when a workday actually starts, and when it ends. Does the day start and stop repeatedly as a worker moves from one activity to the next? Is everything but a lunch period or a coffee break to be counted as paid time? Does the workday, in the words of the Labor Department, run “from whistle to whistle”?
Those questions, involving the meaning of the federal Portal to Portal Act, have split the lower federal courts, and now the US Supreme Court is stepping in to give a clear-cut answer. For the Court, the issues arise in two cases – one from the poultry-processing industry, the other from beef slaughterhouses.
But the answers the Court will give may affect virtually any industry where workers do not spend their whole day on the job at actual work stations but engage in other work-related activity that their job entails – including such mundane things as waiting and walking. In fact, the two cases before the Court focus explicitly on waiting and walking: waiting to pick up and drop off required tools, safety gear or protective clothing, and walking to or from a locker room and to or from the work floor or assembly line.
That raises an even larger issue for the Court to tackle, as it’s spelled out in one of the appeals: “It would be impossible to aggregate the amount of time spent per workday if the ‘workday’ itself were not first defined.”
The Court’s Decision May Affect a Variety of Industries.
The outcome, the Court has been told, is likely to affect workers and their employers in not only the poultry and meat processing industries, but in pharmaceutical and medical equipment plants, oil and gas processing facilities, biotechnology industries and manufacturing factories of many kinds. “These questions directly and substantially affect the compensation of hundreds of thousands, and perhaps millions, of hourly wage workers,” according to the workers’ appeal in the poultry case.
Many of them have low incomes, so the amount of time at issue can add up to a significant difference in their paychecks. In the poultry case, the workers estimate that they are being denied pay for between 20 and 37 minutes of walking and waiting time per day - in other words, they are working for free that much additional time.
For employers, the prospect of added wage outlays raises the prospect of losing out to competitors, here or abroad. Industry groups have told the Court that the dispute raises the prospect of “large and unforeseen liabilities,” affecting not only the private sector but public employers as well. They fear, for example, that workers who don a uniform or other special clothing at home would try to claim compensation for their commuting time to work.
The Cases Reflect the Evolution of Workplace Laws.
This controversy arises because of varying interpretations of the Portal to Portal Act’s original language in 1947, a 1949 amendment to that Act and a 1956 Supreme Court decision. The Act was passed originally to narrow employers’ obligations under the Fair Labor Standards Act of 1938. The FLSA requires employers to pay their employees for each hour they work, at least at minimum wage rates, and to pay them time-and-a-half for more than 40 hours a week.
Reacting to an earlier Supreme Court decision that assured workers of paid time for walking from the time clock to the work station and back, and for putting on and taking off garments and preparing equipment, Congress in 1947 passed the Portal to Portal Act. It specified that the FLSA did not require employers to pay for walking, riding or traveling to the place of their required “principal activity” nor for activities before or after that “principal activity.” In 1949, Congress added an amendment saying that employers could agree, in labor union contracts, to pay workers for clothes-changing time at the start and end of their shifts.
In a 1956 decision, in the case of Steiner v. Mitchell, the Court declared that “principal activity” under the Act means anything on the job that is “an integral or indispensable part” of the principal tasks that a worker was hired to do. Thus, changing clothes and showering before or after the shift had to be compensated. Interpreting that decision’s scope is what has now divided the lower federal courts – especially as it applies to waiting and walking time.
Now, Waiting Time for Court Watching Begins.
The poultry processing workers’ case now before the Court, Tum v. Barber Foods, involves present and former employees who worked at a Barber Foods plant in Portland, Maine, turning bulk chicken breast meat into nuggets, fingers and stuffed entrees. Under government and local plant rules, they must wear special protective clothing and use special equipment, which they must pick up at supply cages or on hall racks. Workers show up at the plant 15 to 30 minutes early to get ready for the day. Their waiting time to get the gear and the time it takes to walk to the work floor is the time in dispute on their wages. They lost in the federal appeals court based in Boston, which barred compensation for the waiting and walking time.
The other case, IBP v. Alvarez, stemmed from a dispute by workers employed by Tyson Fresh Meats, Inc. (formerly known as IBP, Inc.), the world’s largest beef- and pork-packing company and yielded the opposite result, as least for walking time. These particular workers had jobs at a “kill and processing plant” in Pasco, Wash. They must wear protective gear and use special tools which they must clean up at the end of the day. The federal appeals court based in San Francisco, in the only part of the case now at issue before the Supreme Court, ruled that the workers were entitled to pay for walking between the locker room and stations in the slaughtering or processing sections of the plant.
The two sides in the controversy – workers and employers – are totally at odds, but they emphatically agree on one thing: the Supreme Court is the place to get the dispute settled. The Labor Department, too, agrees on that, and is expected to take the workers’ side. Congress could act, but it has shown no inclination to get involved. A Supreme Court decision is expected in the term that starts in October.
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The article originally appeared in Workforce Insights on www.veritude.com. ©2005 Veritude, LLC. Reprinted with permission.