Originally Published February 22, 2005

On February 22, 2005, the Supreme Court granted certiorari in two cases of interest to the business community, which it consolidated. Amicus briefs in support of petitioners will be due on Friday, April 8, 2005, and amicus briefs in support of respondents will be due on Friday, May 13, 2005.

Fair Labor Standards Act — Portal-To-Portal Act — Compensation For Time Spent Walking To Or Waiting At Stations Where Required Safety Equipment Is Dispensed. Under the Portal-to-Portal Act of 1947, an employer generally does not have an obligation to pay wages under the Fair Labor Standards Act ("FLSA") for pre- or post-shift activities, even if those activities are related to an employee’s work. In particular, the Portal-to-Portal Act exempts from the FLSA time spent "(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, 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). However, the Supreme Court has held that "activities performed either before or after the regular work shift" are nonetheless compensable "if those activities are an integral and indispensable part of the [employee’s] principal activities." Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (emphasis added).

Based on Steiner, many, though not all, courts have held that time spent donning and doffing required safety equipment — such as lab coats, safety glasses, or steel-toed boots — must be compensated under the FLSA. See Tum v. Barber Foods, Inc., 360 F.3d 274, 284 & n.9 (1st Cir. 2004) (Boudin, C.J., concurring) (collecting cases). The Supreme Court granted certiorari in and consolidated IBP, Inc. v. Alvarez, No. 03-1238, and Tum v. Barber Foods, Inc., No. 04-66, to consider the related questions whether time spent (a) waiting for such safety equipment at stations where that equipment is collected, and (b) walking between those stations and the employee’s work station, also must be compensated under the FLSA. These questions have divided the federal courts of appeals. Compare Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003) (such time must be compensated under the FLSA) with Tum, 360 F.3d 274 (such time is exempted under the Portal-to-Portal Act).

The resolution of these issues is important to businesses in a wide variety of industries, but in particular to industries in which safety equipment is used (such as the meat-processing industry). A ruling that such time must be compensated would impose substantial labor costs on numerous businesses. Furthermore, because the Department of Labor ("DOL") has repeatedly opined on the questions presented in this case over the years, the Court may address the level of deference owed to DOL Opinions Letters — a question of great importance to all employers.

On February 22, 2005, the Supreme Court invited the Acting Solicitor General to file briefs expressing the views of the United States in the following cases of interest to the business community:

Public Utility Dist. No. 1 v. Dynegy Power Marketing, Inc., No. 04-621: The questions presented address whether the filed rate and federal preemption doctrines bar claims that generators and wholesalers of electrical power manipulated the market and restricted energy supplies in violation of state antitrust and unfair competition laws.

Texaco, Inc. v. Gallagher, No. 04-795, and Shell Oil Co. v. Dagher, No. 04-814: The question presented is whether it is per se illegal under Section 1 of the Sherman Act for a joint venture established by former competitors to sell its products as two distinct brands having uniform prices.

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