Abdela Tum didn't start and end his workday the way most employees do. Like the other 700 laborers at the Barber Foods chicken-processing plant in Maine, Tum first had to wait in line to pick up protective gear. Then he had to head to the locker room and dress himself in that gear before walking to the processing floor to clock in and begin disassembling chicken parts. These tasks not only took a few minutes before his shift began, but also several minutes after it ended. Unfortunately for Tum, Barber wasn't paying him for that time.

While a few minutes before and after work don't seem like much, for laborers such as Tum it makes a difference. So much so, in fact, that in late 2000 Tum and a few of his colleagues filed suit, Tum et al. v. Barber Foods, seeking compensation for that unpaid time.

Tum's gripe wasn't unique. Around the same time as Tum filed his case, several employees of a Tyson Fresh Meats meat-packing plant in Washington filed a similar suit, Alvarez et al. v. IBP. When the 1st and 9th circuits returned conflicting decisions on whether employers had to pay employees for the time they spend putting on or taking off protective gear, the Supreme Court stepped in.

Renaming the combined cases Alvarez, the High Court ruled in November 2005 in favor of the plaintiffs. While the decision has clarified the 1947 Portal-to-Portal amendment to the Fair Labor Standards Act (FLSA), it may have opened the door for litigation that could spread beyond the meat-packing industry.

“We're going to see plaintiffs' lawyers testing the limits of this opinion,” warns Chris Lauderdale, of counsel at Jackson Lewis in Greenville, S.C. “There is no telling what industries they will try to go into.”

Issues Over Time

The issues in Alvarez aren't new to the courts. After Congress passed the FLSA in 1938, there was some uncertainty among employers as to what activities were compensable. To settle the confusion, Congress passed the Portal-to-Portal Act as an amendment to the FLSA in 1947. According to the Act, employers don't have to pay employees for “walking, riding or traveling to and from the actual place of performance of the principal activity or activities” or for “activities which are preliminary or postliminary to such activity or activities.”

But after the High Court decided Steiner v. Mitchell in 1957, the law again became unclear.

“On its face, the Portal-to-Portal Act said that the activities in question in Alvarez aren't compensable,” says Mary Will, a partner at Perkins Coie in Denver. “But after Steiner, that changed.”

The Supreme Court ruled in Steiner that battery plant workers should be compensated for time spent showering after their shifts (see sidebar). “The company required the workers to shower at the end of their shifts so they didn't take a pound of lead home to their families,” explains Lauderdale, who co-authored an amicus brief on behalf of Barber Foods with Jackson Lewis partner David Wylie in Alvarez.

In Steiner the court said that activities that are “integral and indispensable” to a principle activity, regardless of what they are, are compensable.

That had spawned some litigation regarding what is considered integral and indispensable to an employee's principle activities. But for the most part, the courts read the Steiner decision as referring only to jobs involving dangerous substances.

Those weren't the circumstances in Alvarez.

Tale of Two Cases

Before the Supreme Court would have its say in Alvarez, the two cases had to wend their ways though the lower courts.

By August 2003, Alvarez v. IBP had made it to the 9th Circuit Court of Appeals, which found in the employees' favor, ordering IBP to reimburse the laborers for their time. A few months later in Tum, the 1st Circuit Court of Appeals returned a contradictory ruling, finding in favor of Barber. In that decision, the court said the amount of time it took for the employees to change was so small, it wasn't compensable.

“There had been a number of cases like these after Steiner and before Tum and Alvarez, but we didn't have that split in the circuits we needed to get clarification on the law,” says Tim Fleming, counsel for Tum and an attorney at Wiggins, Childs, Quinn & Pantazis in Washington, D.C.

The Supreme Court seemed clear in its decision. The justices unanimously held in Alvarez that the time employees spend putting on specialized protective gear, walking to their workstations after putting on the protective gear, walking from the area where they change out of the protective gear, waiting to take off the protective gear and taking off the protective gear was compensable working time under the FLSA. However, the Court held that the time employees spend before their shifts waiting in line to pick up protective gear wasn't compensable.

“The decision will have profound implications for all types of employers,” Wylie says.

Litigation Landslide

While Alvarez only dealt with meat- and poultry-processing plants, experts fear the Supreme Court's decision will spawn litigation in other industries.

According to Wylie, the decision has already sparked litigation among companies that employ telephone operators.

“The telephone operators that have sued are claiming, under the same argument, that the time it takes them to stop at their lockers, pick up their headsets and walk to their consuls is compensable,” he says. Although he couldn't comment further on the pending litigation, he and Lauderdale believe this is only a sampling of what's to come.

“Absolutely any employer that requires that their employees wear protective gear before they can go into the workplace–particularly where they have long walks to the manufacturing plants–are going to be at risk,” Lauderdale says.

Furthermore, the possibility of lawsuits will likely spill over into the public sector. According to Lauderdale, employees who work for the government file more FLSA claims than any other type of employee. And he predicts an onslaught of suits among employees such as firefighters, paramedics and police officers who dress in their protective gear at home.

“It's important that employers across the board understand this isn't just a meat and poultry case,” he says. “This decision has far-reaching ramifications.”

Fleming disagrees.

“The law has never been clearer,” he says. “Employers now know what their obligations are, and they can change their practices to satisfy the law.”

But Will says companies would be well advised to ensure their policies reflect this change in the law. That could be as simple as re-examining current procedures.

“If, for example, a company has employees coming in early to get things ready,” she says, “it may simply want to add those tasks to the employees' regularly scheduled workday.”

But until the courts clarify this decision, experts urge companies to safeguard themselves against lawsuits. “The extent to which this can go is limited only by the creativity of plaintiffs' lawyers bringing claims,” Wylie says.?

Deciding Steiner

In an attempt to clarify the ambiguities in the Fair Labor Standards Act of 1938, Congress passed the Portal-to-Portal Act in 1947. The amendment drew a distinction between the noncompensable preliminary and postliminary work activities and the compensable principle work activities.

In 1956, when a group of battery plant operators became upset because their employer required them to shower at the end of their shifts to remove toxic lead, but didn't compensate them, they sued in Steiner v. Mitchell.

“The Act said that walking to your work station, changing your clothes and showering wasn't compensable,” says Chris Lauderdale, of counsel at Jackson Lewis in South Carolina. “But this case was unique because of the hazardous material involved.”

The Supreme Court found that while showering as a preliminary or postliminary activity wouldn't be compensable, in the case of the employees in Steiner, showering was an integral and indispensable to the workers' principle activities, and therefore compensable.

Abdela Tum didn't start and end his workday the way most employees do. Like the other 700 laborers at the Barber Foods chicken-processing plant in Maine, Tum first had to wait in line to pick up protective gear. Then he had to head to the locker room and dress himself in that gear before walking to the processing floor to clock in and begin disassembling chicken parts. These tasks not only took a few minutes before his shift began, but also several minutes after it ended. Unfortunately for Tum, Barber wasn't paying him for that time.

While a few minutes before and after work don't seem like much, for laborers such as Tum it makes a difference. So much so, in fact, that in late 2000 Tum and a few of his colleagues filed suit, Tum et al. v. Barber Foods, seeking compensation for that unpaid time.

Tum's gripe wasn't unique. Around the same time as Tum filed his case, several employees of a Tyson Fresh Meats meat-packing plant in Washington filed a similar suit, Alvarez et al. v. IBP. When the 1st and 9th circuits returned conflicting decisions on whether employers had to pay employees for the time they spend putting on or taking off protective gear, the Supreme Court stepped in.

Renaming the combined cases Alvarez, the High Court ruled in November 2005 in favor of the plaintiffs. While the decision has clarified the 1947 Portal-to-Portal amendment to the Fair Labor Standards Act (FLSA), it may have opened the door for litigation that could spread beyond the meat-packing industry.

“We're going to see plaintiffs' lawyers testing the limits of this opinion,” warns Chris Lauderdale, of counsel at Jackson Lewis in Greenville, S.C. “There is no telling what industries they will try to go into.”

Issues Over Time

The issues in Alvarez aren't new to the courts. After Congress passed the FLSA in 1938, there was some uncertainty among employers as to what activities were compensable. To settle the confusion, Congress passed the Portal-to-Portal Act as an amendment to the FLSA in 1947. According to the Act, employers don't have to pay employees for “walking, riding or traveling to and from the actual place of performance of the principal activity or activities” or for “activities which are preliminary or postliminary to such activity or activities.”

But after the High Court decided Steiner v. Mitchell in 1957, the law again became unclear.

“On its face, the Portal-to-Portal Act said that the activities in question in Alvarez aren't compensable,” says Mary Will, a partner at Perkins Coie in Denver. “But after Steiner, that changed.”

The Supreme Court ruled in Steiner that battery plant workers should be compensated for time spent showering after their shifts (see sidebar). “The company required the workers to shower at the end of their shifts so they didn't take a pound of lead home to their families,” explains Lauderdale, who co-authored an amicus brief on behalf of Barber Foods with Jackson Lewis partner David Wylie in Alvarez.

In Steiner the court said that activities that are “integral and indispensable” to a principle activity, regardless of what they are, are compensable.

That had spawned some litigation regarding what is considered integral and indispensable to an employee's principle activities. But for the most part, the courts read the Steiner decision as referring only to jobs involving dangerous substances.

Those weren't the circumstances in Alvarez.

Tale of Two Cases

Before the Supreme Court would have its say in Alvarez, the two cases had to wend their ways though the lower courts.

By August 2003, Alvarez v. IBP had made it to the 9th Circuit Court of Appeals, which found in the employees' favor, ordering IBP to reimburse the laborers for their time. A few months later in Tum, the 1st Circuit Court of Appeals returned a contradictory ruling, finding in favor of Barber. In that decision, the court said the amount of time it took for the employees to change was so small, it wasn't compensable.

“There had been a number of cases like these after Steiner and before Tum and Alvarez, but we didn't have that split in the circuits we needed to get clarification on the law,” says Tim Fleming, counsel for Tum and an attorney at Wiggins, Childs, Quinn & Pantazis in Washington, D.C.

The Supreme Court seemed clear in its decision. The justices unanimously held in Alvarez that the time employees spend putting on specialized protective gear, walking to their workstations after putting on the protective gear, walking from the area where they change out of the protective gear, waiting to take off the protective gear and taking off the protective gear was compensable working time under the FLSA. However, the Court held that the time employees spend before their shifts waiting in line to pick up protective gear wasn't compensable.

“The decision will have profound implications for all types of employers,” Wylie says.

Litigation Landslide

While Alvarez only dealt with meat- and poultry-processing plants, experts fear the Supreme Court's decision will spawn litigation in other industries.

According to Wylie, the decision has already sparked litigation among companies that employ telephone operators.

“The telephone operators that have sued are claiming, under the same argument, that the time it takes them to stop at their lockers, pick up their headsets and walk to their consuls is compensable,” he says. Although he couldn't comment further on the pending litigation, he and Lauderdale believe this is only a sampling of what's to come.

“Absolutely any employer that requires that their employees wear protective gear before they can go into the workplace–particularly where they have long walks to the manufacturing plants–are going to be at risk,” Lauderdale says.

Furthermore, the possibility of lawsuits will likely spill over into the public sector. According to Lauderdale, employees who work for the government file more FLSA claims than any other type of employee. And he predicts an onslaught of suits among employees such as firefighters, paramedics and police officers who dress in their protective gear at home.

“It's important that employers across the board understand this isn't just a meat and poultry case,” he says. “This decision has far-reaching ramifications.”

Fleming disagrees.

“The law has never been clearer,” he says. “Employers now know what their obligations are, and they can change their practices to satisfy the law.”

But Will says companies would be well advised to ensure their policies reflect this change in the law. That could be as simple as re-examining current procedures.

“If, for example, a company has employees coming in early to get things ready,” she says, “it may simply want to add those tasks to the employees' regularly scheduled workday.”

But until the courts clarify this decision, experts urge companies to safeguard themselves against lawsuits. “The extent to which this can go is limited only by the creativity of plaintiffs' lawyers bringing claims,” Wylie says.?

Deciding Steiner

In an attempt to clarify the ambiguities in the Fair Labor Standards Act of 1938, Congress passed the Portal-to-Portal Act in 1947. The amendment drew a distinction between the noncompensable preliminary and postliminary work activities and the compensable principle work activities.

In 1956, when a group of battery plant operators became upset because their employer required them to shower at the end of their shifts to remove toxic lead, but didn't compensate them, they sued in Steiner v. Mitchell.

“The Act said that walking to your work station, changing your clothes and showering wasn't compensable,” says Chris Lauderdale, of counsel at Jackson Lewis in South Carolina. “But this case was unique because of the hazardous material involved.”

The Supreme Court found that while showering as a preliminary or postliminary activity wouldn't be compensable, in the case of the employees in Steiner, showering was an integral and indispensable to the workers' principle activities, and therefore compensable.