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Tum Amicus Brief, supplementary, supporting petition for panel rehearing

Nos. 02-1679, 02-1739
____________________________________________________
____________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_______________________

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
_______________________

SUPPLEMENTARY BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
SUPPORTING PETITION FOR PANEL REHEARING
AND PETITION FOR REHEARING EN BANC
_______________________

HOWARD M. RADZELY
Acting Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

PAUL L. FRIEDEN
Counsel for Appellate Litigation

JONATHAN M. KRONHEIM
Counsel for Trial Litigation

ELLEN R. EDMOND
Senior Attorney

U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Suite N-2716
Washington, D.C. 20210
(202) 693-5555

____________________________________________________
____________________________________________________

TABLE OF AUTHORITIES

Cases:

Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), petition for rehearing filed (Aug. 26, 2003)

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

Apperson v. Exxon Corp., No. S-78-192, 1979 WL 1979, (E.D. Cal. Feb. 7, 1979)

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

Atkins v. General Motors Corp., 701 F.2d 1124 (5th Cir. 1983)

Bagrowski v. Maryland Port Auth., 845 F. Supp. 1116 (D. Md. 1994)

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

Baylor v. United States, 198 Ct. Cl. 331 (1972)

Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998)

Brock v. City of Cincinnati, 236 F.3d 793 (6th Cir. 2001)

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

Fields v. Luther, No. JH-84-1875, 1988 WL 59963 (D. Md. May 4, 1988)

Fox v. Tyson Foods, Inc., No. CV-99-TMP-1612-M (N.D. Ala. Feb. 14, 2001)

Kosakow v. New Rochelle Radiology Assocs., 274 F. 3d 706 (2d Cir. 2001)

Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984)

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

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

Owens v. Local No. 169, Ass'n of W. Pulp and Paper Workers, 971 F.2d 347 (9th Cir. 1992)

Reich v. IBP, Inc., 820 F. Supp. 1315 (D. Kan. 1993), aff'd on other Grounds, 38 F.3d 1123 (10th Cir. 1994)

Reich v. Monfort, Inc., 144 F.3d 1329 (l0th Cir. 1998)

Reich v. New York City Transit Auth., 45 F.3d 646 (2d Cir. 1995)

Riggs v. United States, 21 Cl. Ct. 664 (1990)

Saunders v. Morrell, No. C88-4143, 1991 WL 529542, (N.D. Iowa Dec. 24, 1991)

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., 331 F.3d 1 (1st Cir. 2003)

Vega v. Gasper, 36 F.3d 417 (5th Cir. 1994)

Statutes and Regulations:

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

29 U.S.C. 211(c)

Portal-to-Portal Act of 1947, 29 U.S.C. 251 et seq.:

29 U.S.C. 254(a)
29 U.S.C. 254(a) (1)

Code of Federal Regulations:

29 C.F.R. 785.7
29 C.F.R. 785.14
29 C.F.R. 785.15
29 C.F.R. 785.47
29 C.F.R. 790.6(a)
29 C.F.R. 790.6{b)
29 C.F.R. 790.7(h)
29 C.F.R. 790.8{b)
29 C.F.R. 790.8(c)

Miscellaneous:

93 Cong. Rec. 2298 (1947) (colloquy between Senators Cooper and McGrath)

Field Operations Handbook ("FOH"), 31b13

MeatPoultry.com, Article ID 48104

The Fair Labor Standards Act 8.11.P (E11en C. Kearns and Monica Gallagher eds. 1999)

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
_______________________

SUPPLEMENTARY BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
SUPPORTING PETITION FOR PANEL REHEARING
AND PETITION FOR REHEARING EN BANC
_______________________

    By order dated August 18, 2003, this Court requested the Secretary of Labor ("Secretary") to supplement her amicus brief filed in support of panel rehearing and rehearing en banc by stating her position on the following issues:

1.    Assuming arguendo that (as the Secretary contends) the donning and doffing of required clothes is ordinarily integral to a principal activity, does such donning and doffing start and end the workday where the donning and doffing is itself de minimus;

2.    On the same arguendo assumption -- that donning and doffing is part of a principal activity -- is waiting in line to obtain the initial required clothes part of the principal activity;

3.    Assuming that in some situations doffing and donning is covered by the statute (e.g., required clothes) and in other situations not (e.g., non-required clothes), how does the Secretary propose that the employer calculate hours covered by the statute where, as appears to be so in this case, employees may vary individually, and from day to day, in the order in which they stand in line for required or non-required clothes and walk between different points before actually "punching in" and in which the time spent on such activities itself varies from one day to the next.

    The Secretary states the following in response.

    1.    This Court asks in its first question whether, assuming arguendo that donning and doffing of required clothes is integral to the employees' principal activity, does the donning and doffing start and end the workday when it is itself de minimis. We respectfully submit that the concept of de minimis is not relevant in determining the beginning and end of the "workday."

    The only proper measure of when the "workday" begins and ends, thereby making all time spent in-between compensable "hours worked" under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq., is the performance of the employees' first and last principal activities. As explained in our initial brief, the Portal-to Portal Act ("Portal Act"), 29 U.S.C. 254(a), excludes from compensable "hours worked" under the FLSA only those 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). See also 29 C.F.R. 790.6(a), 790.6(b). Thus, it is an employee's principal activities (or those activities integral thereto) that determine what constitutes the "workday" and compensable hours worked. Nothing in the Portal Act limits or qualifies this definition.

    Quite apart from any determination of the "workday," courts have applied a de minimis principle. The Supreme Court, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), described the principle as follows:

We do not, of course, preclude the application of a de minimis rule where the minimum walking time is such as to be negligible. The workweek contemplated by § 7(a) [FLSA overtime provision] must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Id. at 692. The Sixth Circuit characterized the Mt. Clemens decision as "enabl[ing] courts to treat theoretically compensable work as noncompensable under the FLSA when the amount of such work is negligible." Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir. 2001).

    As the Ninth Circuit stated in the frequently cited case of Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), involving application of the de minimis principle to overtime claims under the FLSA, "as a general rule, employees cannot recover for otherwise compensable time if it is de minimis." Id. at 1062 (emphasis added). See also City of Cincinnati, 236 F.3d at 804 (same); Reich v. Monfort, 144 F.3d 1329, 1333 (10th Cir. 1998) (same); Reich v. New York City Transit Auth., 45 F.3d 646, 652 (2d Cir. 1995) (same). In other words, the first step is to determine compensable time, which, as dictated by the Portal Act, is measured by the "workday." Subsequent to such a determination, if employees have not been paid for any portion of the work performed during the "workday," one looks to whether that "otherwise compensable time" is de minimis and consequently not ultimately compensable. Thus, the de minimis principle is an "exception" to otherwise compensable time; it is not determinative of what is compensable time. See Monfort, 144 F.3d at 1333; Atkins v. General Motors Corp., 701 F.2d 1124, 1129 (5th Cir. 1983).

    That the concept of de minimis is irrelevant to determining the beginning and end of the "workday" is made apparent by how most courts have applied the de minimis principle. Specifically, they have followed the test laid out by the Ninth Circuit in Lindow, which includes among its criteria "the size of the aggregate claim" (gauged, at minimum, on a daily basis). [1] 738 F.2d at 1063. See, e.g., Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 719 (2d Cir. 2001); City of Cincinnati, 236 F.3d at 804-05; Monfort, 144 F.3d at 1333; Bobo v. United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998); Saunders v. Morrell, No. C88-4143, 1991 WL 529542, at *5 (N.D. Iowa Dec. 24, 1991). [2] This is important because the aggregation of uncompensated time, for purposes of a de minimis determination, can only take place after the "workday" is established. Discrete activities such as, for example, the donning of goggles, cannot be looked at in isolation and declared to be in and of themselves de minimis or not, and on that basis be determinative of whether the "workday" begins. Rather, there must be a determination of the "workday" based on the employee's first and last principal activities (or those activities that are integral to the performance of the employee's principal activities). Only then, after the "workday" is fixed, can a determination be made whether all the otherwise compensable time within the workday, for which employees were not compensated, should be compensated based on the Lindow de minimis criteria.

    The Ninth Circuit, however, in its recent decision in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), petition for rehearing filed (Aug. 26, 2003), concluded that the "specific tasks" of donning and doffing "non-unique" protective gear, such as hardhats and safety goggles, while integral and indispensable to the employees' principal activities, were not compensable because they were de minimis "as a matter of law." Id. at 903-04. In so concluding, the court inexplicably relied on its own Lindow precedent. Id. As explained above, Lindow does not support the court's conclusion in Alvarez on this point. Rather, Lindow specifically sets out criteria for determining whether aggregate time during the "workday" is de minimis, which necessarily calls for a factual inquiry. [3] The court in Alvarez thus misapprehended its own precedent, and thereby misapplied the concept of de minimis to discrete activities as a matter of law. This, in turn, allowed the Ninth Circuit to treat as noncompensable "the de minimis time associated with the donning and doffing of non-unique protective gear." Alvarez, 339 F.3d at 904. The court was in error on this point.

    In sum, in stating what is excludable from compensable "hours worked" under the FLSA, the Portal Act points to those activities occurring prior to the employee's first principal activity of the "workday" and subsequent to the last principal activity of the "workday." See 29 U.S.C. 254(a). Thus, compensable "hours worked" under the FLSA are delimited by the "workday," which in turn is determined by the employee's first and last principal activities. Nowhere in the Portal Act, the Secretary's interpretive regulations, or the applicable caselaw is the "workday," as defined by those starting and ending principal activities, in any way limited by the de minimis concept. In fact, it cannot be so limited in light of the correct application of the de minimis principle, which applies only after the "workday" is properly established.

    2.    This Court also requests the Secretary's position on whether, assuming arguendo that donning and doffing is part of an employee's principal activity, waiting in line to obtain the initial required clothing also is part of the principal activity. As discussed below, Supreme Court and appellate court cases, the Secretary's interpretive regulations, and the legislative history of the Portal Act all support the conclusion that waiting in line to obtain the first item of required clothing is an integral and indispensable part of an employee's principal activity and, accordingly, is compensable as "hours worked" within the meaning of the FLSA and Portal Act.

    Whether waiting time is compensable "hours worked" within the meaning of the FLSA depends on whether an employee is "waiting to be engaged" or "engaged to wait." See generally, Skidmore v. Swift & Co., 323 U.S. 134, 136 (1944). In Skidmore, 323 U.S. at 136, the Court stated that "hours worked" under the FLSA is not limited to active labor: "No principle of law found either in the statute or in Court decisions precludes waiting time from also being working time," and "[f]acts may show that the employee was engaged to wait, or they may show that he waited to be engaged." Accord Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 350-51 (9th Cir. 1992). See also 29 C.F.R. 785.7, 785.14; The Fair Labor Standards Act § 8.II.B (Ellen C. Kearns and Monica Gallagher eds. 1999).

    Thus, "idle" or waiting time is compensable "work" under the FLSA where it is controlled by the employer and is spent predominantly for the employer's benefit. See, e.g., Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) (a companion case to Skidmore). [4] The Secretary's interpretive regulations explain that an employee is "engaged to wait," and therefore performing work, when the periods of inactivity are unpredictable and of short duration:

In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In [such] cases waiting is an integral part of the job. The employee is engaged to wait.

29 C.F.R. 785.15 (citations omitted). Under these governing legal principles, the Ninth Circuit in Alvarez recognized that the time spent by employees waiting in line to obtain protective clothing constitutes "work" under the FLSA. See 339 F.3d at 902 ("Plaintiffs' donning and doffing, as well as the attendant retrieval and waiting, constitute 'work' under Muscoda and Armour's catholic definition: pursued necessarily and primarily for the benefit of the employer, . . . these tasks are activity, burdensome or not, performed pursuant to IBP's mandate for IBP's benefit as an employer.") (internal quotations and citations omitted).

    Even where wait time constitutes "work" under the FLSA, however, it nevertheless may not be compensable if it is preliminary or postliminary activity within the meaning of the Portal Act. See Vega v. Gasper, 36 F.3d 417, 425 (5th Cir. 1994) ("Wait time is compensable when it is part of a principal activity, but not if it is a preliminary or postliminary activity."). See also 29 C.F.R. 790.8(c). But, the Portal Act was not intended to limit FLSA coverage of work that is integral to the performance of an employee's principal activities, regardless of whether that work occurs before or after an employee's regular shift. See Steiner v. Mitchell, 350 U.S. 247, 256 (1956) ("[A]ctivities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the [FLSA] if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).").

    Thus, in Steiner, the Supreme Court essentially prescribed a functional test that requires an analysis of the relatedness of the activity at issue to the primary duties of the job. [5] Using a similar analysis, the Supreme Court held in Mitchell v. King Packing Co., 350 U.S. 260 (1956), a companion case to Steiner, that the knife-sharpening activities of the defendant meatpacking company were an integral and indispensable part of the principal activities for which they were employed and thus not "preliminary" or "postliminary" activities excluded from compensability under the Portal Act. Significantly, in reaching its conclusion, the Court rejected the lower court's concern that if all activity indispensable to the performance of productive work is excluded from the terms preliminary and postliminary, the intended effect of the Portal Act would be negated. See id. at 261. See also Alvarez, 339 F.3d at 902-03 ("To be 'integral and indispensable,' an activity must be necessary to the principal work performed and be done for the benefit of the employer.").

    The Fifth Circuit also applied a functional analysis in Vega v. Gasper. Vega involved farmworkers who were transported to fields by their employer; they sought compensation for the time that they spent waiting for the sun to rise before starting their chile-picking duties. See 36 F.3d at 423. The court stated that "if the workers were on duty in the morning so as to get an early start for their employer's benefit (e.g., to assure that work would start promptly at sunrise) or because of Gasper's scheduling, the morning wait time is a compensable principal activity." Id. at 426 (citing Fields v. Luther, No. JH-84-1875, 1988 WL 59963, *14-*15 (D. Md. May 4, 1988) (time spent by farmworkers waiting in fields for dew to dry is compensable because workers were on duty)).

    Under the Steiner analysis, the time spent by Barber Foods' employees waiting in line to obtain their initial protective clothing is integral to their principal activities. To perform their processing jobs, the employees must don certain required clothing. Prior to donning the clothing, moreover, the employees must arrive at the processing plant before their shifts to wait in lines to obtain the required clothing. The clothing must be obtained and donned before the employees are allowed to punch in to the computerized time-keeping system at the entrances to the production floor. [6] Because the waiting is controlled by, and done for the benefit of, Barber Foods, and because obtaining protective clothing is necessary for the performance of the employees' processing jobs, the waiting is integrally related to their principal activities under Steiner's functional test. See Alvarez, 339 F.3d at 904 (waiting and walking connected with the employees' donning and doffing activities is integrally related to their principal activities and, therefore, constitutes compensable work under the FLSA and Portal Act).

    The conclusion that the necessary waiting time associated with donning and doffing activities is compensable under the Portal Act as integral to the employees' principal activities also is compelled by the Secretary's interpretive regulations. Although the regulations do not specifically address the compensability of time spent waiting to pick up required protective clothing, they do distinguish between waiting time before the commencement of work that occurs when an employee voluntarily arrives earlier than required or expected, which is not compensable, and waiting time that occurs when an employee arrives at work when required, "but for some reason beyond his control there is no work for him to perform until some time has elapsed," which is compensable. See 29 C.F.R. 790.7(h). This interpretive regulation cites to the legislative history of the Portal Act, which makes clear that the Portal Act was not intended to apply to situations where employees are required to be at their place of employment, but for reasons beyond their control are unable to begin their productive work. Id. (citing 93 Cong. Rec. 2298 (1947) (colloquy between Senators Cooper and McGrath)).

    For example, in Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th Cir. 1990), assembly line workers at a frozen food packaging facility were required to arrive at work at a specified time, place their names on a sign-in sheet, and wait before they began actual productive work. Relying on 29 C.F.R. 790.7(h), the Fifth Circuit concluded that the waiting time was compensable, stating that "[w]here an employee is required by his employer to report to work at a specified time, and the 'employee is there at that hour ready and willing to work but' is unable to begin work for a period of time for some reason beyond his control, the employee is engaged to wait and is entitled to be paid for the time spent waiting." Id. at 1414. Similarly, in Fox v. Tyson Foods, Inc., No. CV-99-TMP-1612-M (N.D. Ala. Feb. 14, 2001) (Putnam, Mag. J.) (pending on review before district court) (Attachment A), poultry workers sought compensation for time spent donning, doffing, and cleaning protective gear and for pre-shift time spent waiting to obtain smocks. Slip op. at 8-9. The magistrate judge concluded that all these activities were compensable as integral and indispensable to the employees' principal activities. Id. at 26-30. See also Reich v. IBP, Inc., 820 F. Supp. 1315, 1324 (D. Kan. 1993) ("We see no distinction between actually sharpening knives and waiting to obtain sharpened knives -- the benefit to IBP was the same."), aff'd on other grounds, 38 F.3d 1123 (10th Cir. 1994).

    Because the donning and doffing of clothing necessary to the performance of an employee's principal activity is integrally related to that principal activity, the necessary waiting time connected with obtaining such clothing also is integrally related to the employee's principal activity, regardless of whether the waiting time occurs before or after the employees' regular work shift. See Steiner, 350 U.S. at 256. [7]

    3.    This Court's third question addresses an important practical issue: how can an employer track and record the first principal activity that triggers the start of the workday, when the timing of that activity can vary by individual and from day to day?

    A basic principle under the FLSA is that employers are responsible for the recording of time. As the Supreme Court observed in Mt. Clemens Pottery Co., 328 U.S. at 687, "it is the employer who has the duty under § 11(c) of the Act [29 U.S.C. 211(c)] to keep proper records of wages, hours and other conditions and practices of employment." Accordingly, the employer must structure its operations in a manner that permits the accurate recording of this time. Cf. Vega, 36 F.3d at 427 (where employees are forced to wait because of the inefficiencies of the employers' payroll system, that waiting time is compensable).

    Here, Barber Foods has structured its operations in a manner that precludes the possibility of accurate timekeeping. While employees are paid from the moment they clock in at the entrances to the production floor, see Tum, 331 F.3d at 4, Barber Foods mandates that they don required equipment before they clock in and doff this equipment after they clock out. The company also allows its employees to don non-required equipment after clocking in. See id. at 3. Barber Foods thus exercises its control over the workforce to assure, if inadvertently, that the time employees take to perform their first principal activity is not captured in its records.

    If, on the other hand, Barber Foods modified its current procedures, it could accurately capture time from the first principal activity to the last principal activity. The company could require its employees to don their optional equipment prior to clocking in, and to don their required equipment (that is, clothing required by law, by rules of the employer, or by the nature of the work) after the clock-in. This procedure would capture the time taken to perform the first principal activity, and those activities performed thereafter, while excluding noncompensable activity from recorded time. In fact, Barber Foods already has a computerized time keeping system that uses time clocks that are located at the entrances and exits to the production floor. See Tum, 331 F.3d at 4. It is certainly within Barber Foods' control to move its racks and receptacles for required clothes to ensure that employees don and doff such clothing after clocking in and before clocking out. Alternatively, the company could move the time clocks to achieve the same purpose. Barber Foods could also use time clocks that do not allow employees to clock in prior to the appropriate time, enabling the company to better control its time recording processes.

    The Secretary believes that these changes are feasible because at least one large poultry processing firm already has implemented these types of procedures. In May 2002, Perdue Farms, Inc. [8] entered into a consent judgment with the Secretary in which Perdue agreed to record and pay for any time integral and indispensable to the work of its production line employees, including the donning, doffing, and sanitizing of any clothing or equipment required by law, by Perdue, or by the nature of the job. See Perdue Consent Judgment (Attachment C). Perdue also agreed to record and pay for the time employees spend walking or waiting after their first principal activity has been performed. See Perdue side agreement (Attachment D).

    The side agreement to Perdue's consent decree makes clear that compliance merely requires that an employer structure its operations so that employees will clock in prior to putting on equipment that is required to be donned at the plant, and clock out after taking off that equipment. [9] Accordingly, after entering into the consent decree Perdue modified its operations by, among other things, putting its time clocks on or near the production floor (waterproofing them where necessary); establishing or moving racks and receptacles holding required gear so that employees can don equipment only after clocking in and remove it prior to clocking out; moving or eliminating supply rooms at which employees had waited for supplies; experimenting with different kinds of gear which may be quicker to put on and take off; and obtaining computerized time recording equipment which prevents clocking-in prior to a time set by Perdue.

    In short, with relatively straightforward modifications that already have proven effective by its competitor, Barber Foods can record and pay its employees for all of the time spent between their first principal activity and last principal activity, as defined in the Portal Act. Indeed, as the panel itself recognized, the procedures necessary to properly pay its employees are completely within the control of Barber Foods. See Tum, 331 F.3d at 6.

    Additionally, consistent with the practical concerns of this Court, it is important to note that the donning and doffing of required clothing is not always compensable. The Secretary has created a bright-line test that distinguishes between the donning and doffing of clothing that must be done at work and the donning and doffing of clothing that may be done elsewhere. The putting on and taking off of clothing that is required to be done on the employer's premises is compensable; on the other hand, where the employee has the option of donning and doffing required clothing at home, the activity is not compensable.

    Thus, the Secretary's regulations specifically provide that "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," the clothes changing is compensable. 29 C.F.R. 790.8(c) and n.65 (emphasis added). Moreover, the Field Operations Handbook ("FOH"), which contains official guidance for the conduct of FLSA investigations by the Department of Labor's Wage and Hour Division, provides that changing required clothing at home is not compensable. [10]

    The Secretary's position in this regard has been followed by the courts. For example, in Apperson v. Exxon Corp., No. S-78-192, 1979 WL 1979, *8 (E.D. Cal. Feb. 7, 1979), the court held that required clothes changing need not be compensated unless the employer requires that it be done at the worksite "or unless the employee cannot safely wear such clothing home at the end of the day." See also Baylor v. United States, 198 Ct. Cl. 331 (1972) (changing into uniforms that could not be worn to or from guards' homes was integral to performance of their principal activities); Riggs v. United States, 21 Cl. Ct. 664 (1990) (getting protective clothing, appearing at roll call, and putting clothing away after inspection was integral to firefighters' principal activities where the equipment could not be taken from the premises). Compare Bagrowski v. Maryland Port Auth., 845 F. Supp. 1116, 1121 n.6 (D. Md. 1994) (putting on uniforms at work was not compensable where "many officers came to work in their uniforms and nothing prevented the plaintiffs from doing so").

    4.    We therefore urge this Court to accept the principle, as set out in the Portal Act, that the "workday" begins and ends based on an employee's first and last principal activities, not on whether such first and last principal activities are themselves de minimis. We further urge this Court to conclude that waiting in line to obtain the initial required protective gear is integrally related to the employees' principal activities, and is thus compensable. Finally, there are no practical obstacles to Barber Foods compensating its employees for all compensable time, because the manner in which the company sets up its operations are completely within its control.

    Thus, for these reasons, and those set forth in the Secretary's initial amicus brief, the Secretary requests that this Court grant panel rehearing or rehearing en banc.

Respectfully submitted,

HOWARD M. RADZELY
Acting Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

JONATHAN M. KRONHEIM
Counsel for Trial Litigation

ELLEN R. EDMOND
Senior Attorney

___signed________
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 supplementary brief for the Secretary of Labor as amicus curiae have been served on September 15, 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

David R. Wylie, Esq.
D. Christopher Lauderdale, Esq.
Haynsworth Baldwin Johnson & Greaves LLC
P.O. Box 10888
Greenville, South Carolina 29603

___signed________
JOHN S. CASLER
Deputy Regional Solicitor
(617) 565-2500


Footnotes

[1]    The Ninth Circuit in Lindow did not state definitively what it meant by aggregating time. It did state that "[a]n important factor in determining whether a claim is de minimis is the amount of daily time spent on additional work." 738 F.2d at 1062. The Ninth Circuit, however, also cited to other cases where time has been aggregated beyond a daily basis (ranging up to three years). Id. at 1063 ("Courts have granted relief for claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim."). The court also pointed to cases where time was aggregated "in relation to the total sum or claim involved in the litigation." Id. See also Monfort, 144 F.3d at 1334 (post-Lindow case where court stated that "[i]t is also appropriate to consider an aggregate based on the total number of workers"). The Secretary does not comment here as to precisely how one should aggregate time other than to say that it should at minimum be done on a daily basis.

[2]    The Ninth Circuit stated that "the practical administrative difficulty of recording small amounts of time for payroll purposes" should also be used to determine if time is de minimis. Lindow, 738 F.2d at 1062. See also 29 C.F.R. 785.47. And the court said that consideration should further be given to "whether the claimants performed the work on a regular basis." Lindow, 738 F.2d at 1063.

[3]    The Secretary takes no position on whether the total time in the instant case is de minimis in accordance with the Lindow criteria.

[4]    Armour and Skidmore thus clarify 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.

[5]    See also Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984) ("The only activities excluded from FLSA coverage are those undertaken 'for [the employees'] own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer.'") (quoting Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976)), cert. denied, 471 U.S. 1054 (1985); 29 C.F.R. 790.8(b) ("The term 'principal activities' includes all activities which are an integral part of a principal activity."); and 29 C.F.R. 790.8(c) ("Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance.").

[6]    The panel recognized implicitly that the amount of time that employees spend waiting for their required sanitary and protective gear is within the control of Barber Foods. In rejecting the compensability of walking time, the panel 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." Tum v. Barber Foods, Inc., 331 F.3d 1, 6 (1st Cir. 2003). Similarly, if Barber Foods were to provide easier access to the clothing tubs or more attendants handing out gear at the equipment cage window, the time spent by employees waiting to obtain their gear would be lessened.

[7]    Of course, once the employees don their first piece of required protective clothing, any subsequent waiting time (where not long enough for the employees to use effectively for their own purposes) would be compensable as part of the employees' workday. As the Secretary noted in her initial amicus brief and in response to this Court's first question above, the Portal Act does not apply to any time spent between the performance of an employee's first and last principal activities. Even absent application of the "first principal activity" principle, however, waiting to obtain required clothes is not excluded from compensability under the Portal Act because it is integral to the employees' principal activities.

[8]    As of August 2001, Perdue Farms was the fourth largest poultry processor in the nation and the largest in the Northeast. See MeatPoultry.com, Article ID 48104 (Attachment B).

[9]    Significantly, the Wage and Hour Division also has entered into agreements with Honda Manufacturing of Alabama and Mercedes-Benz U.S. International that require recording and payment for all time worked from the first principal activity to the last principal activity as described above. Prior to these agreements, those firms, like Perdue, did not pay for their employees' donning and doffing time. Since the agreements entered into with the Secretary, these companies have made changes in their corporate practices to achieve compliance. See Attachment E.

[10]    FOH section 31b13 provides:

Changing clothes at home.

Employees who dress to go to work in the morning are not working while dressing even though the uniforms they put on at home are required to be used in the plant during working hours. Similarly, any changing which takes place at home at the end of the day would not be an integral part of the employees' employment and is not working time.