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Alvarez Amicus Brief

Nos. 02-35042; 02-35110
___________________________________________________________________
___________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

___________________

GABRIEL ALVAREZ, RANULFO GUTIERREZ, PEDRO HERNANDEZ,
individually and as class representatives, MARIA MARTINEZ, RAMON
MORENO, ISMAEL RODRIQUEZ,

Plaintiffs-Appellees, Cross-Appellants,

v.

IBP, INC., a Delaware corporation,

Defendant-Appellant, Cross-Appellee.
___________________

On Appeal From The United States District Court
For The Eastern District of Washington
___________________

BRIEF FOR THE SECRETARY OF LABOR
AS AMICUS CURIAE

____________________

EUGENE SCALIA
Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

PAUL L. FRIEDEN
Counsel for Appellate Litigation

ELLEN R. EDMOND
Attorney
U.S. Department of Labor
Suite N-2716
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202) 693-5555

___________________________________________________________________
___________________________________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

STATEMENT OF ISSUES

STATEMENT OF THE CASE

  1. Statement of Facts

  2. The District Court's Decision

SUMMARY OF ARGUMENT

ARGUMENT

  1. TIME SPENT IN PRE-AND POST-SHIFT DONNING, DOFFING, CLEANING, AND STORING OF THE "NON-UNIQUE" PROTECTIVE CLOTHING WORN BY IBP'S MEATPACKING EMPLOYEES, AND RELATED TIME SPENT WALKING AND WAITING, IS COMPENSABLE "HOURS WORKED" UNDER THE FLSA AND PORTAL ACT

  1. Pre- and Post-Shift Donning or Doffing of Non-Unique Protective Clothing is Integral and Indispensable to the Employees' Principal Activities

  2. Activities Occurring after Commencement of an Employee's First Principal Activity and Before Completion of His Last Principal Activity Are Compensable Under the Portal Act

  1. SECTION 3(o)APPLIES TO ALL OF THE PROTECTIVE CLOTHING TYPICALLY WORN BY EMPLOYEES IN THE MEATPACKING INDUSTRY AND TO WASHING OF THE PERSON

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES

Cases:

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)

Anderson v. Pilgrim's Pride Corp., 147 F. Supp.2d 556 (E.D. Tex. 2001), appeal docketed, No. 01-40477 (5th Cir. May 8, 2001)

Apperson v. Exxon Corp., 24 WH Cases (BNA) 364 (E.D. Cal. Feb. 7, 1979)

Armour & Co. v. Wantock, 323 U.S. 126 (1944)

Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984), cert. denied, 471 U.S. 1054 (1985)

Blum v. Great Lakes Carbon Corp., 418 F.2d 283 (5th Cir. 1969), cert. denied, 397 U.S. 1040 (1970)

Chao v. Perdue Farms, Inc., No. 02-CV-33 (M.D. Tenn. May 10, 2002)

Chao v. Tyson Foods, Inc., No. 02-CV-1174 (N.D. Ala.) (complaint filed May 9, 2002)

Dole v. Enduro Plumbing, Inc., 30 WH Cases (BNA) 196 (C.D. Cal. Oct. 16, 1990)

Dunlop v. City Elec., Inc., 527 F.2d 394 (5th Cir. 1976)

Fox v. Tyson Foods, Inc., No. CV-99-TMP-1612-M (N.D. Ala. Feb. 14, 2001) (Putnam, Mag. J.) (recommended report adopted by district court Feb. 4, 2002)

Gulden v. Crown Zellerback Corp., 890 F.2d 195 (9th Cir. 1989)

Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980)

Jackson v. Air Reduction Co., 402 F.2d 521 (6th Cir. 1968)

Lee v. Am-Pro Protective Agency, Inc., 860 F. Supp. 325 (E.D. Va. 1994)

Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th Cir. 1990)

Mitchell v. Greinetz, 235 F.2d 621 (10th Cir. 1956)

Mitchell v. King Packing Co., 350 U.S. 260 (1956)

Perrin v. United States, 444 U.S. 37 (1979)

Pressley v. Sanderson Farms, Inc., No. H-00-420, 2001 WL 850017 (S.D. Tex. Apr. 23, 2001), aff'd, No. 01-20527 (5th Cir. March 7, 2002) (per curiam)

Reich v. IBP, Inc., No. 88-2171-EEO (D. Kan. July 31, 1996)

Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994)

Saunders v. John Morrell & Co., 1 WH Cases2d (BNA) 879 (N.D. Iowa Dec. 24, 1991)

Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749 (1st Cir. 1974)

Skidmore v. Swift & Co., 323 U.S. 134 (1944)

Steiner v. Mitchell, 350 U.S. 247 (1956)

Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944)

Tum v. Barber Foods, Inc., No. 00-371-P-C, 2002 WL 89399 (D. Me. Jan. 23, 2002) (Cohen, Mag. J.), recommended decision affirmed (Feb. 20, 2002)

United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109 (10th Cir. 1999)

United States v. Akintobi, 159 F.3d 401 (9th cir. 1998)

United States v. Mead, 533 U.S. 218 (2001)

United States v. Smith, 155 F.3d 1051 (9th Cir. 1998)

United States v. Stanley, 483 U.S. 669 (1987)

Wirtz v. Harrell Packing Co., 16 WH Cases (BNA) 420 (W.D. Tex. Mar. 3, 1964)

Statutes and Regulations:

Fair Labor Standards Act, 29 U.S.C. 201 et seq.

29 U.S.C. 203(o)
29 U.S.C. 207
29 U.S.C. 208, 63 Stat. 920 (1949)
29 U.S.C. 216(b)
29 U.S.C. 216(c)

Portal-to-Portal Act, 29 U.S.C. 251 et seq.

29 U.S.C. 252(a)
29 U.S.C. 254(a) passim

Code of Federal Regulations:

9 C.F.R. Part 308 (1999)
9 C.F.R. 308.6
9 C.F.R. 308.7
9 C.F.R. 308.8(d)
9 C.F.R. 416.2 - 416.6 (2000)
9 C.F.R. 416.1
9 C.F.R. 416.5(b)
29 C.F.R. 785.7
29 C.F.R. 785.16(a)
29 C.F.R. 785.19
29 C.F.R. 785.26
29 C.F.R. 790.2(a)
29 C.F.R. 790.6(a)
29 C.F.R. 790.6(b)
29 C.F.R. 790.7(g)
29 C.F.R. 790.8(a)
29 C.F.R. 790.8(c)
29 C.F.R. 1910.132(a)
29 C.F.R. 1910.1050 App. A

Miscellaneous:

Rule 29, Federal Rules of Appellate Procedure

12 Fed. Reg. 7655 (Nov. 18, 1947)

93 Cong. Rec. 2297 (1947)

93 Cong. Rec. 4269 (statement of Senator Wiley)

95 Cong. Rec. H11210 (daily ed. Aug. 10, 1949) (statement of Rep. Herter)

95 Cong. Rec. S14875 (Oct. 18, 1949)

Hearings before a Subcomm. of the Senate Comm. on Labor and Public Welfare, 81st Cong., 1st Sess. (1949)

S. Rep. No. 48 (1947)

S. Rep. No. 640 (1949), reprinted in 1949 U.S.C.C.A.N. 2241

The Fair Labor Standards Act 8.II.B (Ellen C. Kearns and Monica Gallagher eds. 1999)

Webster's New World Dictionary (2d college ed. 1982)

STATEMENT OF INTEREST

    The Secretary of Labor ("Secretary") submits this brief as amicus curiae, pursuant to Rule 29 of the Federal Rules of Appellate Procedure. This case presents fundamental questions of statutory interpretation concerning the compensability of work under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq., and 4(a) of the Portal-to-Portal Act ("Portal Act"), 29 U.S.C. 254(a). The Secretary's decision to participate as amicus stems in part from the recent comprehensive departmental review of "hours worked" issues in the food processing industry, which in the last month led to two significant steps. First, the Secretary filed legal actions seeking compensation for "donning and doffing" against two leading poultry producers. See Chao v. Perdue Farms, Inc., No. 02-CV-33 (M.D. Tenn. May 10, 2002) (consent judgment); Chao v. Tyson Foods, Inc., No. 02-CV-1174 (N.D. Ala.) (complaint filed May 9, 2002). The Secretary believes the recovery obtained in Perdue is among the largest in the history of the Department of Labor's Wage and Hour Division. Second, the Administrator of the Department's Wage and Hour Division issued an opinion letter that interprets 3(o) of the FLSA, 29 U.S.C. 203(o), to include certain protective clothing worn by meatpacking employees like the plaintiffs in this case. The letter withdraws three letters that had been issued recently on the subject and returns to the position taken previously by regional and district officials in enforcement actions. See, e.g., Reich v. IBP, Inc., No. 88-2171-EEO (D. Kan. July 31, 1996).

STATEMENT OF ISSUES

  1. Whether time spent by meatpacking employees in pre- and post-shift donning, doffing, cleaning, and storing of non-unique protective clothing, such as hard hats, hairnets, earplugs, safety glasses, frocks, and boots, including any related walking and waiting time, is compensable "hours worked" under the FLSA and Portal Act.

  2. Whether the FLSA's 3(o) exemption from compensable "hours worked" for "changing clothes or washing" applies to all protective clothing typically worn in the meatpacking industry, and to washing of the person, not to washing clothing or tools.

STATEMENT OF THE CASE [1]

  1. Statement of Facts

    Plaintiffs are 815 slaughter or processing division employees who worked at IBP's Pasco, Washington meatpacking plant between June 30, 1995, and August 24, 1999 (Op. 10-11). Most of Pasco's slaughter and processing employees are represented by Local Union No. 556 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (id. at 3). Plaintiffs, who include the named plaintiffs and those who chose to "opt-in" to this 16(b) action, alleged that IBP violated 7 of the FLSA, 29 U.S.C. 207, by, inter alia, failing to compensate them for time spent before and after their regular shifts donning, doffing, cleaning, and storing certain necessary clothing and tools, and for waiting and walking time connected with these activities (id. at 1, 10-11). The employees also alleged that IBP failed to compensate them for pre-shift time spent obtaining various required gear, such as sandpaper for their "steels" (used to straighten the edge of their knives), air knives, and meat hooks, and for time spent sanding their steels (id. at 6, 8, 17).

    Employees in Pasco's slaughter and processing divisions are required to wear (as characterized by the district court) certain "non-unique" protective clothing consisting of hard hats, hairnets, earplugs, safety glasses (or face shields), safety boots, and frocks or other white outer garments (Op. 5, 19-20). Knife-users in both divisions are required to wear a variety of additional protective gear, including mesh and rubber aprons; mesh legging aprons; scabbards; gloves made of cloth, mesh, rubber, and "can't cut" material; plexiglass arm guards; mesh, plastic, and polar sleeves; and plastic leggings (id. at 5-6, 21). Many employees also wear weight belts to prevent back injuries (id. at 6). Employees also are assigned various tools such as steels, scissors, and meat hooks (id. at 6, 7, 33).

    Before beginning their shifts, all employees are required to retrieve from company-provided lockers hard hats, hairnets, earplugs, and boots, as well as various tools necessary for their jobs, such as steels and meat hooks (Op. 5, 6). Slaughter division employees begin their day picking up their supplies, including a white shirt laundered daily by IBP, from the supply room and then going to their lockers (id. at 6). They don most of their safety clothing in the locker room and then proceed to the slaughter floor, where many go to the knife room to obtain sandpaper for their steels; knives are distributed on the slaughter floor (id.). Before their shifts begin, knife-users sand their steels, while air knife users wipe and wash grease from their air knives (id.).

    Processing division employees generally begin their day going to their lockers to put on their hard hats, hairnets, earplugs, safety glasses, and boots (see, e.g., Tr. 370; Tr. 427-28). After donning these items, the processing employees go to the cafeteria to obtain their frocks, laundered each night by IBP (Op. 6). Employees testified that they will not be given a frock unless they are wearing their hard hats (see, e.g., Tr. 359-60; Tr. 427). The employees also must wait for the general distribution of, and then spend "considerable time" locating their own gloves and protective sleeves, which also are laundered by IBP each evening (Op. 6-7, 8, 23). Prior to the beginning of their shifts, many knife-users in the processing division also spend time sanding their steels (Tr. 3472-73).

    At the end of their shifts, all employees must clean their protective clothing and return it either to the supply room or their lockers (Op. 7). Most slaughter division employees hose down and scrub their aprons, sleeves, rubber gloves, and boots at wash stations located throughout the slaughter floor (id.). Knives are returned to collection boxes; soiled shirts, gloves, and sleeves are returned to the supply room (id.). Processing division employees clip soiled gloves and protective sleeves onto a glove pin and then return them for laundering (id.). Processing division knife-users place their knives in buckets that are passed along the production lines (id.). Washable protective clothing and tools such as scabbards, chains, mesh gloves, steels, plastic sleeves, aprons, meat hooks, scissors, and boots, are washed at sinks before they are stored in the employees' lockers (id.). Employees often must wait in lines before they can wash their gear (id. at 18, 22).

    Both slaughter and processing division employees clock in and out at the beginning and end of the day with "swipe" cards (Op. 3). Employees actually are paid on a "gang time" basis, under which compensable time begins when the first piece of meat reaches the beginning of the line and ends when the last piece of meat leaves the beginning of the line (Op. 2-3).

  1. The District Court's Decision

    The district court concluded that IBP violated the FLSA by failing to pay employees in Pasco's slaughter and processing divisions for certain pre- and post-shift time spent donning, doffing, cleaning, and storing the protective clothing and tools required for their jobs (Op. 33). Specifically, the court concluded that the donning and doffing of required protective gear, such as mesh and rubber aprons; mesh legging aprons; mesh, cloth, "can't cut," and rubber gloves; plexiglass arm guards; mesh, plastic, and polar sleeves; plastic leggings; and weight belts, constituted work and was integral and indispensable to the employees' principal activities within the meaning of the Portal Act (id. at 20-21, 27-29, 31-33). The court rejected the rationale of Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994), that the donning and doffing of safety gear not unique to the meatpacking industry was not work (Op. 19), but nevertheless held that time spent donning such non-unique protective clothing as hard hats, hairnets, earplugs, goggles, and boots was not compensable because these items were not integral and indispensable to the employees' principal activities within the meaning of the Portal Act (id. at 19, 20-21, 29, 31-33). [2] The district court also held that the time spent by employees waiting to retrieve or wash protective clothing or tools and time spent walking to and from the locker room to the work station was compensable, where such activities occurred after the start of the first principal activity of their workday (id. at 18-19). The court concluded that the employees' first principal activity begins when they start donning their first piece of compensable protective gear (id.).

    With regard to 3(o), the district court concluded that the "changing clothes or washing" exemption does not apply to donning or doffing protective clothing unique to the meatpacking industry, and applies only to "washing of the person" (Op. 29). The court also concluded that the time spent by employees retrieving tools such as meat hooks and air knives, or engaging in such activities as sanding steels, cannot be excluded from compensable hours worked under 3(o) (id.).

SUMMARY OF ARGUMENT

    The time spent by the employees of IBP's meatpacking plant in pre- and post-shift donning, doffing, cleaning, and storing of required protective clothing was compensable "hours worked" under the FLSA and Portal Act because such activities were integral and necessary to the performance of their jobs. This conclusion is compelled by the Portal Act amendments to the FLSA, by the text of 3(o) of the FLSA, 29 U.S.C. 203(o), by the legislative history of the Portal Act, by the Supreme Court's decision in Steiner v. Mitchell, 350 U.S. 247 (1956), and by the Secretary's longstanding, published interpretations of section 4(a) of the Portal Act, which were ratified by Congress in 1949, when 3(o) was enacted. See Note following 29 U.S.C. 208, 63 Stat. 920 (1949); Steiner, 350 U.S. at 255 nn.8 and 9.

    Section 3(o) of the FLSA permits employers and their employees' representative to collectively bargain over compensation for "changing clothes." That statutory provision would be unnecessary and a nullity if the statutory scheme did not contemplate that clothes changing otherwise would be compensable in some circumstances. The legislative history of the Portal Act amendments to the FLSA confirm that clothes changing may be compensable. For example, the principal sponsors of the Portal Act clearly state that clothes changing would be compensable in the case of workers at a chemical company, if changing clothes at work was integral to their job and not merely a convenience to the employees. The Supreme Court held that clothes changing was compensable for workers at a battery plant in its Steiner decision; in making clear that clothes changing that is required and necessary to an employee's job is compensable "hours worked," the Court relied on the legislative history discussed above and actually appended it to its decision. Finally, when enacting 3(o), Congress effectively ratified the Secretary's interpretation of 4 of the Portal Act, which provides that changing clothes is compensable as an integral part of the employee's principal activity if the principal activity cannot be performed without putting on and taking off the clothes on the employer's premises, i.e., if it is not merely a "convenience" to the employee. See 29 C.F.R. 790.8(c) (first promulgated at 12 Fed. Reg. 7655, 7660 (Nov. 18, 1947)).

    The clothes changing at issue in this case is required by the employer and is integral to the plaintiffs' work and, accordingly, is compensable time under the text of the FLSA and Portal Act as interpreted by the Supreme Court, Congress, and the Department's longstanding regulations. The district court correctly rejected the Tenth Circuit's conclusion in Reich v. IBP, Inc., 38 F.3d at 1126, that the donning and doffing of safety gear not unique to the meatpacking industry is not work because it requires little or no concentration. The Tenth Circuit's IBP decision conflicts with the Supreme Court's holding in Armour & Co. v. Wantock, 323 U.S. 126, 132-33 (1944), that "work" under the FLSA does not require a threshold level of exertion.

    The district court also correctly concluded that time spent in donning and doffing activities, including any related time spent in walking and waiting, is compensable as "hours worked" under the Portal Act when it occurs subsequent to an employee's first principal activity and before his last principal activity of the workday. This conclusion is supported by the plain meaning of the Portal Act, its legislative history, and the Secretary's longstanding interpretations. See 29 U.S.C. 254(a); 29 C.F.R. 790.6.

    Finally, the term "changing clothes or washing" under 3(o) of the FLSA applies to all of the protective clothing worn by employees in this case, but only to washing of the person. See Opinion Letter of the Administrator, Wage and Hour Division, to Samuel D. Walker, dated June 6, 2002 (Addendum "A," attached).

ARGUMENT

  1. TIME SPENT IN PRE- AND POST-SHIFT DONNING, DOFFING, CLEANING, AND STORING OF THE "NON-UNIQUE" PROTECTIVE CLOTHING WORN BY IBP'S MEATPACKING EMPLOYEES, AND RELATED TIME SPENT WALKING AND WAITING, IS COMPENSABLE "HOURS WORK" UNDER THE FLSA AND PORTAL ACT

  1. Pre- and Post-Shift Donning or Doffing of "Non-Unique" Protective Clothing is Integral and Indispensable to the Employees' Principal Activities

    The Supreme Court has stated that both the legislative history of 4 of the Portal Act, 29 U.S.C. 254, [3] and the enactment of 3(o) of the FLSA, 29 U.S.C. 203(o), make clear that the Portal Act does not exclude from compensable "hours worked" time spent by an employee on his employer's premises changing into and out of clothes that are integral and necessary to his job. Steiner, 350 U.S. at 254-58. In Steiner, the Court specifically considered whether employees who worked in a battery plant should be compensated under the FLSA for changing into old work clothes as required by both state law and the employer. See 350 U.S. at 248. The Court concluded that the employees' changing of clothes was "an integral and indispensable part of the principal activity of the[ir] employment ...." Id. at 256. In so concluding, the Court took the extraordinary step of attaching as an appendix to its opinion the legislative history of the Portal Act that it deemed particularly pertinent, including the following statement from a sponsor of 4 (governing post-1947 claims):

In accordance with our intention as to the definition of "principal activity," if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to the specific work, it would not be considered a part of his principal activity, and it follows that such time would not be compensable.

350 U.S. at 258 (quoting 93 Cong. Rec. 2297-98 (statement of Senator Cooper)). [4]

    Furthermore, the Supreme Court noted in Steiner that 3(o), which provides for the exclusion from hours worked of time spent by employees changing clothes or washing at the start and end of each workday if such time is excluded under a CBA, reflects Congress's intent, in situations not governed by a CBA, to count as hours worked clothes-changing integral to the performance of the work. 350 U.S. at 254-55. See also 29 C.F.R. 785.26.

    The Secretary has consistently interpreted the Portal Act to provide that changing clothes is compensable as an integral part of the employee's principal activity if the principal activity cannot be performed without putting on and taking off the clothes on the employer's premises, i.e., if it is not merely a "convenience" to the employee. See 29 C.F.R. 790.8(c) (first promulgated at 12 Fed. Reg. 7655 (Nov. 18, 1947)). [5] The interpretative regulations further explain that "[s]uch a situation may exist 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." Id. at 790.8(c) n.65. See also 29 C.F.R. 790.7(g) n.49 ("Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee's principal activity."). The Supreme Court in Steiner specifically upheld these regulations, noting that they were ratified by Congress in 1949 when former 16(c) of the FLSA was enacted. See 250 U.S. at 255 nn.8 and 9. Section 16(c) provided that existing Wage-Hour regulations or interpretations, not inconsistent with the amendments, remained in effect. See Note following 29 U.S.C. 208, 63 Stat. 920 (1949). [6]

    Following Steiner, many courts specifically have deemed the donning and doffing of protective clothing to be compensable when it is required by the employer and is integral to the performance of the work. Essentially, these cases prescribe a functional test, requiring an analysis of the relatedness of the donning and doffing of clothing to the primary duties of the job. See, e.g., Lee v. Am-Pro Protective Agency, Inc., 860 F. Supp. 325, 326-27 (E.D. Va. 1994) (changing into uniforms that private security guards cannot wear to or from home is integral to performance of their principal activities); Apperson v. Exxon Corp., WH Cases (BNA) 364, 369 (E.D. Cal. Feb. 7, 1979) (clothes-changing is compensable where employer requires that it be done on premises or employee cannot safely wear clothing home); Tum v. Barber Foods, Inc., No. 00-371-P-C, 2002 WL 89399, *9 (D. Me. Jan. 23, 2002) (Cohen, Mag. J.), recommended decision (affirmed Feb. 20, 2002) (donning and doffing of clothing required by the defendant or by government regulation is integral to plaintiffs' work), jury verdict (May 1, 2002), appeal docketed (1st Cir. May 31, 2002); Fox v. Tyson Foods, Inc., No. CV-99-TMP-1612M, slip op. at 30 (N.D. Ala. Feb. 14, 2001) (Putnam, Mag. J.) (recommended report adopted by district court Feb. 4, 2002) (see Addendum "B," attached) (donning of smocks, aprons, boots, and other gear is integral and indispensable to work plaintiffs perform). [7]

    Conversely, and in keeping with the Secretary's Portal Act interpretation at 29 C.F.R. 790.8(c), where pre- and post-shift clothes-changing and washing up is not required by the employer and is allowed merely as a convenience for the employees, courts have held that the time generally is not compensable. See, e.g., Blum v. Great Lakes Carbon Corp., 418 F.2d 283, 285 (5th Cir. 1969) ("early relief" system allowing employees to bathe and change clothes was created by employees, was wholly voluntary, and was not of benefit to employer); Jackson v. Air Reduction Co., 402 F.2d 521 (6th Cir. 1968) (same); Wirtz v. Harrell Packing Co., 16 WH Cases (BNA) 420, 422 (W.D. Tex. Mar. 3, 1964) (meat boners were not required to wear coats, aprons, gloves, or hand and wrist guards).

    In the instant case, the donning and doffing of hard hats, hairnets, earplugs, safety goggles, frocks, and boots are integral and indispensable to the employees' principal activities; this "non-unique" protective clothing, [8] which must be donned and stored on the company's premises, is required by IBP as necessary for its employees' jobs. [9] Accordingly, time spent donning or doffing such "non-unique" safety clothing is compensable hours worked.

    Finally, in considering whether the employees' donning and doffing activities are compensable under the FLSA and Portal Act, the district court correctly rejected IBP's reliance upon Reich v. IBP, 38 F.3d at 1125-26, which held that the donning and doffing of lighter protective gear is not compensable "work" under the FLSA because it requires little effort (Op. 19). [10] Work under the FLSA does not require a threshold level of exertion; even waiting time is compensable if it predominantly benefits the employer. See Armour & Co. v. Wantock, 323 U.S. 126, 132-33 (1944) ("[A]n employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity."). In Skidmore v. Swift & Co., 323 U.S. 134, 138-39 (1944), a companion case to Armour, the Court reiterated that "hours worked" under the FLSA is not limited to active labor. See also 29 C.F.R. 785.7; The Fair Labor Standards Act 8.II.B (Ellen C. Kearns and Monica Gallagher eds. 1999). [11]

  1. Activities Occurring after Commencement of an Employee's First Principal Activity and Before Completion of His Last Principal Activity Are Compensable Under the Portal Act

    Only those activities occurring before an employee commences his first principal activity or after he ceases his last principal activity are excluded under the plain terms of the Portal Act. See 29 U.S.C. 254(a) (excluding from compensable "hours worked" only those activities occurring "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" his principal activities). Thus, any activity occurring between the employees' first and last principal activities, including walking and waiting time, is compensable. As the Secretary's interpretative regulations provide, "[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). [12]

    The Secretary's interpretative regulations provide that "workday" for Portal Act purposes means "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) (footnote omitted). [13] These regulations, as noted above, were ratified by Congress in 1949. See Steiner, 350 U.S. at 255 n.8. See also United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1119 (10th Cir. 1999) (travel time during "workday" is not ordinary commuting time under Portal Act); Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1414 (5th Cir. 1990) (relying upon Secretary's definition of workday in 29 C.F.R. 790.6(b), court held that employees required to arrive at work at specific time to sign in and then wait until beginning productive work should be compensated for waiting time); Dole v. Enduro Plumbing, Inc., 30 WH Cases (BNA) 196, 200 (C.D. Cal. Oct. 16, 1990) (where an employee is required to arrive at a designated place to receive instructions or pick up tools, arrival at the designated spot triggers the start of his workday; once the workday is triggered, any subsequent time spent until the last principal activity of the workday constitutes hours worked under the FLSA).

    In sum, the district court correctly ruled that pre-shift time spent by employees waiting to retrieve necessary protective clothing and tools and post-shift time spent waiting to wash protective clothing and tools, as well as time spent walking from the locker to the work station and back where the employer requires that protective clothing and tools be stored in company-provided lockers, is compensable as being all in a day's work. See 29 U.S.C. 254(a); 29 C.F.R. 790.6(b); Frio Foods, 899 F.2d at 1414; Enduro Plumbing, 1990 WL 252270 at *5.

  1. SECTION 3(o) APPLIES TO ALL OF THE PROTECTIVE CLOTHING TYPICALLY WORN BY EMPLOYEES IN THE MEATPACKING INDUSTRY AND TO WASHING OF THE PERSON

    Section 3(o) of the FLSA provides that an employer does not have to pay for time spent "changing clothes or washing at the beginning or end of each workday" if such time is excluded from working time "by the express terms of or by custom or practice under a bona fide collective-bargaining agreement." 29 U.S.C. 203(o). On June 6, 2002, the Administrator of the Department of Labor's Wage and Hour Division issued an opinion letter on the application of this provision to the clothes-changing and washing activities of employees in the meatpacking industry (see Addendum "A"). The letter provides that "clothes" under 3(o) includes items worn on the body for covering, protection, or sanitation, but does not include tools such as knives, scabbards, or meat hooks; the letter also states that the term "washing" in 3(o) refers to washing of the person, not to washing of protective clothing or tools. [14] As discussed below, the Administrator's interpretation of these statutory terms is reasonable and comports with congressional intent. [15]

    The FLSA does not define the term "changing clothes or washing" for purposes of 3(o), and the legislative history specifically addresses only the scope of the term "washing." The House version of the provision would have allowed the elimination from hours worked of any activity of an employee as provided by the express terms of, or custom or practice under, a collective bargaining agreement. See S. Rep. No. 640 (1949), reprinted in 1949 U.S.C.C.A.N. 2241, 2255. The conference committee explained that it narrowed the scope of the provision by "limit[ing] this exclusion to time spent by the employee in changing clothes and cleaning his person at the beginning or at the end of the workday." Id. (emphasis added). This explicitly narrow reading of "washing" is supported by a summary submitted during the debates that describes the conference agreement as "limit[ing]" the provision's application "to time spent in changing clothes or washing (including bathing) at the beginning or end of each workday." 95 Cong. Rec. S14875 (Oct. 18, 1949). See also Saunders v. John Morrell & Co., 1 WH Cases2d (BNA) 879, 882-83 (N.D. Iowa Dec. 24, 1991) ( 3(o) does not cover the cleaning of safety equipment); 29 C.F.R. 790.7(g) & n. 49 (using the phrase "washing up or showering" in addressing test for preliminary or postliminary activities).

    As noted above, the scope of the term "clothes changing" is not specifically addressed in the statute or legislative history. When words are not defined by statute, courts generally give them their ordinary or natural meaning. See United States v. Akintobi, 159 F.3d 401, 403 (9th Cir. 1998) (citing Perrin v. United States, 444 U.S. 37, 42 (1979)). The ordinary meaning of the word "clothes" reasonably encompasses articles worn on the body for purposes of protection. See Webster's New World Dictionary (2d college ed. 1982) (defining "clothes" as "articles, usually of cloth, designed to cover, protect or adorn the body") (emphases added). [16] In fact, both the Supreme Court and this Court have used the term "protective clothing." See Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 660-61 (1980) (the "Benzene" case) (stating that compliance with an OSHA requirement "could be achieved simply by the use of protective clothing, such as impermeable gloves"); United States v. Stanley, 483 U.S. 669, 671, 690 (1987) (referring to clothing to protect from chemical exposure); Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 196 (9th Cir. 1989) (referring to use of protective clothing for PCB cleanup). Significantly, the Department of Labor itself has described articles worn for protective purposes as clothing. See 29 C.F.R. 1910.1050 App. A (OSHA regulations characterizing "face shields" as a kind of "protective clothing").

    Furthermore, although the legislative history of 3(o) does not specifically address the scope of "changing clothes," Congress, in enacting the Portal Act, and the Supreme Court, in interpreting the Act in Steiner, recognized that the purpose of clothing specially worn for the workplace might well be protection. Indeed, it was in part precisely because the clothing at issue in Steiner served protective purposes that the Court, in reliance upon the legislative debates of the Portal Act, indicated that donning and doffing the clothing in question was "integral" to the job and, accordingly, compensable.

    That effective protective clothing may in some instances be heavier than ordinary street clothes is no basis to withdraw it from 3(o)'s coverage. Indeed, it would be a disservice to the workers that the FLSA was designed to protect if employers who wished to introduce bulkier and more protective gear in the workplace knew that in doing so they would lose their ability to bargain with their unions over the compensability of donning and doffing protective gear. Such an intent should not be attributed to Congress in interpreting 3(o).

    Additionally, the Administrator's interpretation provides a clearer definition of clothing than did the recent opinion letters that she withdrew. Congress intended to give a measure of deference to the agreements and judgments shared by companies and their employees' duly-designated representatives for purposes of negotiating the terms and conditions of employment in the clothes-changing context. See 95 Cong. Rec. at H11210 (1949). Removal of uncertainty as to what constitutes clothing will facilitate negotiations between employers and unions, and thus serve the underlying purposes of 3(o).

    In sum, this Court should reverse the district court's conclusion that 3(o) does not apply to all of the protective clothing worn by employees in the meatpacking industry, including mesh and rubber aprons; mesh, cloth, rubber, and "can't cut" gloves; plexiglass arm guards; mesh, plastic, and polar sleeves; plastic leggings; and weight belts. This Court, however, should affirm the district court's conclusion that the definition of "clothes" under 3(o) does not encompass tools such as scabbards, meat hooks, knives, or edge-straightening steels. This Court also should affirm the district court's conclusion that 3(o) applies to washing the person, not to washing or sanitizing safety clothing or gear. As noted above, the Secretary takes no position in this brief on what constitutes a custom or practice for purposes of excluding time under 3(o), or on whether there is such a custom or practice here.

CONCLUSION

    The Secretary respectfully requests that this Court affirm and vacate, as set forth above, the district court's conclusions concerning the compensability, under the FLSA and 4(a) of the Portal Act, of time spent by IBP's employees donning, doffing, cleaning, and storing their necessary protective clothing.

Respectfully submitted,

EUGENE SCALIA
Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

PAUL L. FRIEDEN
Counsel for Appellate Litigation

___signed___________
ELLEN R. EDMOND
Attorney
U.S. Department of Labor
200 Constitution Avenue, N.W.
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 upon the following counsel by deposit in first-class mail this 10th day of June, 2002:

William Rutzick
Schroeter, Goldmark & Bender
500 Central Building
810 Third Avenue
Seattle, WA 98104

David N. Mark
810 Third Avenue, Suite 412
Seattle, WA 98104

Michael B. King
Lane Power Spears Lubersky
1420 Fifth Avenue, Suite 4100
Seattle, Washington 98101-2338

___signed___________
ELLEN R. EDMOND
Attorney
U.S. Department of Labor
Suite N-2716
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202) 693-5555

CERTIFICATE OF COMPLIANCE

    Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit Rule 32-1, I certify that the attached amicus brief of the Secretary of Labor contains monospace type (Courier New, 12 point), which has 10.5 or fewer characters per inch, and contains not more than 7000 words of text.

Date: 6-10-2002

___signed______
Ellen R. Edmond
Attorney


Footnotes

[1]    Only those facts and district court holdings relevant to the issues briefed herein are set forth below.

[2]    Alternatively, the court concluded that the donning or doffing of these items was not compensable because they were clothing within the meaning of 3(o) of the FLSA or the amount of time involved was de minimis (Op. 19-20, 21-22). Although the court held that frocks were integral and indispensable to the employees' principal activities for purposes of the Portal Act, it concluded that the donning or doffing of frocks was not compensable under 3(o)'s "changing clothes" exemption (id. at 21, 33).

[3]    Section 4 of the Portal Act excludes from compensable "hours worked" under the FLSA:

  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).

The Portal Act's exclusions should be read narrowly. See Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984), cert. denied, 471 U.S. 1054 (1985); Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976); 29 C.F.R. 790.2(a), 790.8(c).

[4]    The Portal Act's 1947 enactment was largely in response to the decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). See Steiner, 328 U.S. at 253. In Mt. Clemens, the Supreme Court held that the time employees were required to spend walking to and from their work stations on the employer's premises was "hours worked" under the FLSA. 328 U.S. at 691. The Court also found compensable, as a necessary prerequisite to the employees' production work, such preliminary activities engaged in by employees as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger sheaths, preparing equipment, turning on switches for lights and machinery, opening windows, and assembling and sharpening tools. Id. at 692-93. To protect employers against unexpected liabilities that arose as a result of Mt. Clemens 2 of the Portal Act limited FLSA coverage to those activities engaged in prior to May 14, 1947, that were specified by "contract" or "custom or practice." 29 U.S.C. 252(a). As stated in Steiner, the Portal Act "was designed primarily to meet an 'existing emergency'" resulting from the unexpected liability for back wage claims. 350 U.S. at 253. By contrast, 4, which governs post-1947 claims, was designed to preserve the employee's FLSA rights and benefits. See 93 Cong. Rec. 2297 (1947).

[5]    Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), holds that the Secretary's interpretative regulations "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." See also United States v. Mead, 533 U.S. 218, 227-28 (2001).

[6]    Significantly, in enacting 3(o), Congress, among other things, responded to concerns raised by the bakery industry that because of the Secretary's interpretative regulations the Portal Act would not insulate that largely unionized industry from post-1947 actions brought by bakery workers for compensation for time spent changing clothes and washing up at the beginning and end of their workday. See Hearings before a Subcomm. of the Senate Comm. on Labor and Public Welfare, 81st Cong., 1st Sess., on S. 58, S. 67, S. 92, S. 105, S. 190, S. 248, and S. 653, p. 815, at 815-17, and p. 1173, at 1175-79 (1949) (Memorandum on behalf of Pennsylvania Bakers Association; Letter of William A. Quinlan, General Counsel, Associated Retail Bakers of America). See also 95 Cong. Rec. H11210 (daily ed. Aug. 10, 1949) (statement of Rep. Herter). The fact that Congress intended time spent changing clothes worn by bakery workers to be compensable under 4 of the Portal Act (which may be inferred from Congress's ratifying the Secretary's Portal Act interpretations) belies any argument that the compensability for clothes changing under the Portal Act was meant to be limited to circumstances where employees at chemical, battery, or similar factories come into contact with toxic materials.

[7]    More generally, consistent with Steiner and Mitchell v. King Packing Co., 350 U.S. 260 (1956), a companion case to Steiner holding that pre-shift knife sharpening by meatpacking employees is compensable under the Portal Act, other courts have held that preparatory and concluding activities are compensable where they are required by the employer as necessary for the performance of the job. For instance, in City Elec., 527 F.2d at 398-99, in an opinion authored by Judge Wisdom, the Fifth Circuit held certain pre-shift activities to be compensable where "such work is necessary to the business and is performed by the employees, primarily for the benefit of the employer, in the ordinary course of business." Furthermore, the benefit to the employer need not be exclusive to make the required activity compensable. See Barrentine, 750 F.2d at 50; City Elec., 527 F.2d at 398; Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir. 1974); Mitchell v. Greinetz, 235 F.2d 621, 625 (10th Cir. 1956). As the First Circuit stated in E.R. Field, Inc., 495 F.2d at 751 (quoting 29 C.F.R. 790.8(a)), the Portal Act does not cover any work of consequence performed for an employer.

[8]    The Secretary's position is that the donning and doffing of all protective gear is compensable as "hours worked." IBP did not argue before the district court, however, that time spent donning and doffing protective gear that is particular to the meatpacking industry is not "hours worked."

[9]    For the period covered by this action, the United States Department of Agriculture ("USDA") prescribed specific sanitary standards for meat processing plants (9 C.F.R. Part 308 (1999)), including requiring that scabbards and similar devices for the temporary retention of knives, steels, etc., be kept clean, 9 C.F.R. 308.6; that rooms, equipment, and utensils used in the meat processing facilities be kept clean, 9 C.F.R. 308.7; and that clean aprons, frocks, and other outer clothing be worn at the start of each day, 9 C.F.R. 308.8(d). New regulations became effective on January 25, 2000. See 9 C.F.R. 416.2 - 416.6. They provide generally that each establishment "must be operated and maintained in a manner sufficient to prevent the creation of insanitary conditions and to ensure that product is not adulterated." 9 C.F.R. 416.1 (2000). See also id. at 416.5(b) ("Clean garments must be worn at the start of each working day and garments must be changed during the day as often as necessary ....").

    The Occupational Safety and Health Administration's general industry standard for personal protective equipment provides that "[p]rotective equipment ... shall be provided, used and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes or environment ...." 29 C.F.R. 1910.132(a).

[10]    The Secretary believes that the decisions in Pressley v. Sanderson Farms, Inc., No. H-00-420, 2001 WL 850017, *2-*3 (S.D. Tex. Apr. 23, 2001), aff'd, No. 01-20527 (5th Cir. March 7, 2002) (per curiam; unpublished opinion), and Anderson v. Pilgrim's Pride Corp., 147 F. Supp.2d 556, 561 (E.D. Tex. 2001), appeal docketed, No. 01-40477 (5th Cir. May 8, 2001), which relied upon Reich v. IBP to conclude that the donning and doffing activities of poultry workers do not constitute work, are erroneous. On the other hand, the Secretary believes that the concept of "work" under the FLSA was correctly analyzed in Fox v. Tyson Foods, Inc., slip op. at 22-26. In that action brought by poultry workers, the magistrate judge rejected Tyson's argument that the plaintiffs' donning and doffing activities were not work, finding that the poultry workers' donning of smocks, plastic aprons, rubber gloves, steel-mesh gloves, and sleeve guards was required and controlled by Tyson and was necessary to the poultry workers' jobs. (See Addendum "B").

[11]    Armour and Skidmore thus clarified 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. Recently, the Tenth Circuit itself effectively disavowed Reich v. IBP's holding that work for FLSA purposes requires exertion. See United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1116 n.8 (10th Cir. 1999).

[12]    The Senate Report accompanying the Portal Act provided 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.). The Report stated that "workday" means:

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).

[13]    Of course, bona fide meal periods, 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," are not hours worked. 29 C.F.R. 785.16(a), 785.19.

[14]    The Administrator returns to the position taken in meatpacking cases before December 3, 1997 (date of the earliest opinion letter withdrawn by the Administrator (see Addendum "A")) by regional and district officials of the Wage and Hour Division and Office of the Solicitor. That enforcement position applied 3(o) if a bona fide CBA excluded from hours worked time spent by employees in donning and doffing activities. See Reich v. IBP, Inc., No. 88-2171-EEO (D. Kan. July 31, 1996) (pursuant to Secretary's proposed injunction, meatpacking "[p]lants subject to a collective-bargaining agreement are excluded by the reference to section 3(o)"). See also Op. 30. The 1997 opinion letter marked a sufficiently significant change that the Department decided to apply the 1997 interpretation prospectively in its enforcement actions.

[15]    The Secretary takes no position in this brief on what constitutes a custom or practice for purposes of excluding time under 3(o), or on whether there is such a custom or practice here.

[16]    This Court frequently resorts to dictionary definitions to determine the common meaning of words. See, e.g., Akintobi, 159 F.3d at 403; United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998).