No. 0 4 - 6 6

In the

Supreme Court of the United States

ABDELA TUM, et al.,Petitioners,

v.

BARBER FOODS, INC.,Respondent.

On Writ of Certiorari to the United StatesCourt of Appeals for the First Circuit

____________BRIEF AMICI CURIAE OF THE NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION, THE EMPLOYMENT LAW CENTER,AND THE NATIONAL EMPLOYMENT LAW PROJECT IN SUPPORT

OF PETITIONER____________

MARISSA M. TIRONA, ESQ.PROGRAM DIRECTORNATIONAL EMPLOYMENT LAWYERS ASSOCIATION44 Montgomery Street, Suite 2080San Francisco, CA 94104(415) 296-7629

PATRICIA A. SHIU, ESQ.MICHAEL T. GAITLEY, ESQ.THE LEGAL AID SOCIETY- EMPLOYMENT LAW CENTER600 Harrison Street, Suite 120San Francisco, CA 94107(415) 864-8848

CATHERINE K. RUCKELSHAUS, ESQ.NATIONAL EMPLOYMENT

LAW PROJECT55 John Street, 7th FloorNew York, NY 10038(212) 285-3025

SANDRA THOUROT KRIDER, ESQ.Counsel of Record

J. DEREK BRAZIEL, ESQ.EDWARDS & GEORGE, LLP1000 Louisiana, Suite 1300Houston, Texas 77002(713) 339-3233

DAVID BORGEN, ESQ.STUART C. NAIFEH, ESQ.GOLDSTEIN, DEMCHAK, BALLER,

BORGEN & DARDARIAN300 Lakeside Drive, Suite 1000Oakland, CA 94612(510) 763-9800

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

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TABLE OF CONTENTSPAGE

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iv

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE FAIR-LABOR STANDARDS ACT ANDTHE PORTAL-TO-PORTAL ACT ESTABLISHA FIRST PRINCIPAL ACTIVITY RULE GOV-ERNING THE COMPENSABILITY OF WALKAND WAIT TIME. . . . . . . . . . . . . . . . . . . . . . . . 5

A. The First Principal Activity RuleRequires Compensation for Walkand Travel Time Subsequent to anEmployee’s First Principal Activ-ity and Prior to the Last PrincipalActivity of the Day. . . . . . . . . . . . . . . 5

B. The First Principal Activity RuleRequires Compensation for WaitTime Incident to an Employee’sFirst and Last Principal Activitiesof the Day. . . . . . . . . . . . . . . . . . . . . 7

C. The First Principal Activity TestIs Not Limited by the De MinimisRule. . . . . . . . . . . . . . . . . . . . . . . . . . 8

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II. THE FIRST PRINCIPAL ACTIVITY RULEHAS CONSISTENTLY BEEN APPLIED TODETERMINE THE COMPENSABILITY OFTRAVEL, WALK, AND WAIT TIME, ANDINFORMS PRACTICE AND EXPECTATIONS INOTHER INDUSTRIAL CONTEXTS. . . . . . . . . . . . 9

A. Existing Law Makes Travel andWalking Time CompensableWhere It Occurs Subsequent tothe First Principal Activity. . . . . . . . 9

B. Under Existing Case-Law, WaitTime Incident to a Principal Ac-tivity, Such as Donning or DoffingRequired Safety Equipment, isCompensable. . . . . . . . . . . . . . . . . . 13

C. Rejecting the Bright-Line Rule inthis Case Will Upset Settled Ex-pectations Throughout the Econ-omy. . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. THIS COURT SHOULD RECONFIRM THEBRIGHT LINE RULE THAT THE COMPENSA-BLE WORKDAY BEGINS WITH THE FIRSTPRINCIPAL ACTIVITY, WHETHER OR NOTTHE TIME FOR THE ACTIVITY IS DEMINIMIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. The First Principal Activity Ruleis Simplest for Employers andRegulators to Administer, andWill be Less Subject to Abusethan a Rule Permitting Employersto Carve up the Workday. . . . . . . . . 17

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1. The First Principal ActivityTest Provides a Clear Rulethat Serves the Interests ofAll Stakeholders. . . . . . . . . . . . 18

2. A Bright Line Rule Will Re-duce Litigation Over WhichActivities Begin and End theWorkday. . . . . . . . . . . . . . . . . . 23

B. The Alternative Rule Suggestedby the Tum Concurrence is Im-practicable and Subject to theSame Abuses as an Ad HocRule. . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iv

TABLE OF AUTHORITIES

Federal Cases PAGE(S)

Alvarez v. IBP, Inc.,339 F.3d 894 (9th Cir. 2003) . . . . . . . . . . . . . . . . 17, 24

Amos v. United States,13 Cl. Ct. 442 (Cl. Ct. 1987) . . . . . . . . . . . . . . . . . . . 12

Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Baylor v. United States,198 Ct. Cl. 331 (Ct. Cl. 1972) . . . . . . . . . . . . . . . . . . 12

Boudreaux v. Banctec, Inc.,No. Civ. A 03-2111, 2005 WL 517494, *5(E.D. La. Feb. 22, 2005) . . . . . . . . . . . . . . . . . . . . . . . 12

Breen v. Concrete By Wagner, Inc.,No. 98 C 3611, 1999 WL 1016267, *12(N.D. Ill. Nov. 4, 1999) . . . . . . . . . . . . . . . . . . . . . . . . 10

Brock v. DeWitt,633 F. Supp. 892 (W.D. Mo. 1986) . . . . . . . . . . . . . . 13

Dole v. Enduro Plumbing,No. 88 7041-RMT, 1990 WL 252270, *4-5(C.D. Cal. Oct. 16, 1990) . . . . . . . . . . . . . . . . . . . . . . 11

Dooley v. Liberty Mut. Ins. Co.,307 F. Supp. 2d 234 (D. Mass. 2004) . . . . . . . . . . . . 11

Fields v. Luther,No. JH-84-187S, 1988 WL 59963(D. Md. May 4, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 13

v

Herman v. Rich Kramer Const., Inc.,163 F.3d 602, 1998 WL 664622(8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

International Business Investments, Inc.v. United States,11 Cl. Ct. 588 (Cl. Ct. 1987) . . . . . . . . . . . . . . . . . . . 12

Ladegaard v. Hard Rock Concrete Cutters, Inc.,No. 00 C 5755, 2004 WL 1882449, *3(N.D. Ill. Aug. 18 2004) . . . . . . . . . . . . . . . . . . . . . . . 10

Lindow v. United States,738 F.2d 1057 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . 8

Marshall v. Boyd,No. LR C 77-4, 1979 WL 1922, *3(E.D. Ark. Apr. 4, 1979) . . . . . . . . . . . . . . . . . . . . . . . 11

Metzler v. IBP, Inc.,127 F.3d 959 (10th Cir. 1997) . . . . . . . . . . . . 26, 27, 28

Mireles v. Frio Foods,899 F.2d 1407 (5th Cir. 1990) . . . . . . . . 13, 14, 15, 25

Mitchell v. Mitchell Truck Line, Inc.,286 F.2d 721 (5th Cir. 1961) . . . . . . . . . . . . . . . . . . . 11

O’Brien v. Encotech Const.,No. 00 CV 1133, 2004 WL 609798, * 4(N.D. Ill. Mar. 23, 2004) . . . . . . . . . . . . . . . . . . . . . . 10

Powell v. Northwestern Resources Co.,No. 03-S1244, 2004 WL 1576572(5th Cir. Jul 15, 2004) . . . . . . . . . . . . . . . . . . . . . . . . 10

Preston v. Settle Down Enterprises, Inc.,

vi

90 F. Supp. 2d 1267 (N.D. Ga. 2000) . . . . . . . . . 10, 11

Reich v. IBP, Inc.,38 F.3d 1123 (10th Cir. 1994) . . . . . . . . . . . . . . . 17, 26

Reich v. IBP, Inc.,820 F. Supp. 1315 (D. Kan. 1993),aff ’d 38 F.3d 1123 (10th Cir. 1994) . . . . . . . . . . . 26, 27

Reich v. IBP, Inc.,No. 88 2171, 1996 WL. 137817, *1(D. Kan. Mar. 21 1996) . . . . . . . . . . . . . . . . . . . . 26, 27

Reich v. Monfort, Inc.,No. 92-M-2450, 1995 WL 817796(D. Colo. Oct. 19, 1995),aff ’d 144 F.3d 1329 (10th Cir. 1998) . . . . . . . . . . . . . 19

Sedano v. Mercado,No. Civ. 92-0052-HB, 1992 WL. 454007, *3(D.N.M. Oct. 8, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Skidmore v. Swift & Co.,323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . 7, 23, 24

Steiner v. Mitchell,350 U.S. 247 (1956) . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Tum v. Barber Foods, Inc.,360 F.3d 274 (1st Cir. 2004) . . . . . . . . . . . . . . . passim

Vega v. Gasper,36 F.3d 417 (5th Cir. 1994) . . . . . . . . . . . . . . . . . 15, 25

Wales v. Jack M. Berry, Inc.,192 F. Supp. 2d 1269 (M.D. Fla. 1999) . . . . . . . . . . . 13

vii

Whelan Sec. Co., Inc. v. United States,7 Cl. Ct. 496 (Cl. Ct. 1985) . . . . . . . . . . . . . . . . . . . . 12

Statutes

Fair Labor Standards Act of 1938

29 U.S.C. §§ 201 et seq.

§ 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 18

§ 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Portal to Portal Act of 1947

29 U.S.C. §§ 251 et seq.

§ 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5, 7, 12

Regulations

Department of Labor

29 C.F.R. § 785.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

29 C.F.R. § 785.15 . . . . . . . . . . . . . . . . . . 7, 16, 24, 25

29 C.F.R. § 785.16 . . . . . . . . . . . . . . . 7, 16, 23, 24, 25

29 C.F.R. § 785.17 . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16

29 C.F.R. § 785.38 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24

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29 C.F.R. § 790.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

29 C.F.R. § 790.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

29 C.F.R. § 790.7 . . . . . . . . . . . . . . . . 7, 15, 16, 23, 24

29 C.F.R. § 790.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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1 The consents of the parties have been filed with the Clerk of the Court.In compliance with Rule 37.6 of this Court, amici curiae NELA, LAS-ELC,and NELP state that no counsel for either party authored any portion of thisbrief. No persons other than the amici curiae, its members, or its counselmade a monetary contribution to the preparation and submission of thisbrief.

Brief Amici Curiae of National Employment LawyersAssociation, Legal Aid Society-Employment LawCenter, and National Employment Law Project inSupport of Petitioner

The National Employment Lawyers Association (“NELA”),the Legal Aid Society-Employment Law Center (“LAS-ELC”), and the National Employment Law Project (“NELP”)file this Brief as Amici Curiae in support of the Petitioner.NELA, LAS-ELC, and NELP request reversal of the FirstCircuit’s decision. Travel time after donning of necessarysafety equipment, as well as time spent waiting at requiredsafety distribution stations, should be compensable under29 U.S.C. §§ 206, 207 of the Fair Labor Standards Act(“FLSA”), as amended by 29 U.S.C. § 254 of the Portal-to-Portal Act (“Portal Act”).

INTEREST OF AMICI CURIAENELA, LAS-ELC, and NELP file this amicus curiae brief

with the consent of all parties.1

NELA was founded in 1985 and is the only professionalmembership organization in the country comprised oflawyers who represent employees in labor, employment, andcivil rights disputes. NELA and its 67 state and localaffiliates have a membership of over 3,000 attorneys whoare committed to working on behalf of those who havebeen illegally treated in the workplace. NELA strives toprotect the rights of its members’ clients and regularly

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supports precedent-setting litigation affecting the rightsof individuals in the workplace. NELA advocates for em-ployee rights and workplace fairness while promoting thehighest standards of professionalism, ethics, and judicialintegrity.

LAS-ELC is a non-profit public interest law firm whosemission is to protect, preserve, and advance the workplacerights of individuals from traditionally under-representedcommunities. Since 1970, LAS-ELC has representedplaintiffs in cases involving the rights of employees in theworkplace, particularly those cases of special import tocommunities of color, women, recent immigrants, individu-als with disabilities, and the working poor, and specializesin, among other areas of the law, wage and hour rights.

NELP is a non-profit legal organization with over 30years of experience advocating for the employment andlabor rights of low-wage and unemployed workers. NELPseeks to ensure that all employees, and especially the mostvulnerable ones, receive the full protection of employmentlaws, regardless of an individual’s status as an immigrant,or as a worker in a nonstandard relationship such as part-time, temporary, or subcontracted work. NELP’s area ofexpertise includes the workplace rights of documented andundocumented immigrant workers under federal employ-ment and labor laws, with an emphasis on wage and hourand health and safety rights. NELP has litigated directlyand participated as amicus in numerous cases addressingthe rights of immigrant workers under the FLSA and theNational Labor Relations Act. NELP also provides legalassistance to labor unions and immigrant worker organiza-tions regarding the rights of immigrant workers. This caseis important to NELP and its constituents because it hasthe potential to affect many low-income workers, includingday laborers, poultry and meatpacking workers, andconstruction workers.

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Based on their extensive experience and expertise inlitigating employment cases, including cases brought underthe FLSA, NELA, LAS-ELC, and NELP believe that toachieve the goals of the FLSA, employees must be paid forall work performed between their first and last principalactivities of the day, including walk and wait time. Allowingemployers to impose the costs of non-Portal Act pre-shiftand post-shift walk and wait time on employees when theamount of that time is entirely within the control of theemployer violates the fundamental purposes of the FLSA byincreasing the time-burdens facing workers and theirfamilies in numerous sectors of the economy and negativelyimpacting their health, efficiency, and general welfare.Requiring compensation for this time will eliminate suchabuses and place the cost of workplace rules and businessdecisions where it belongs—on employers— and willthereby serve the goals of the FLSA.

SUMMARY OF ARGUMENTCongress passed the Fair Labor Standards Act of 1938

(“FLSA”) in order to eliminate abusive and exploitativelabor conditions that adversely impacted “the health,efficiency, and general well-being of workers.” 29 U.S.C.§ 202. The Portal-to-Portal Act reaffirmed this goal byeliminating liability for certain pre- and post-shift activi-ties, and clearly establishing that employees must bepaid for all hours of work performed during the workday.The Portal-to-Portal Act plainly defined the workday toinclude all hours between an employee’s first and lastprincipal activities. 29 U.S.C. § 254(a).

Under the Portal-to-Portal Act’s first principal activityrule, once the factual issue as to whether an activity is aprincipal activity or is integral and indispensable to aprincipal activity has been answered, any subsequent walkor travel time is compensable. There is no need, nor any

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legal basis, for making a further determination that theactivity starts or does not start the workday. Similarly withrespect to wait time, once the factual issue as to whether anemployee is “engaged to wait” incident to performing his orher first principal activity, there is no basis for concludingthat the wait-time is nevertheless excluded from compensa-bility by the Portal-to-Portal Act.

This bright-line definition of the workday has beenapplied throughout the economy in analyzing the compensa-bility of travel and walk time occurring prior to the estab-lished shift, but after an employee’s first principal activityor subsequent to the established shift but prior to anemployee’s last principal activity. Similarly, where forreasons beyond their control, such as workplace rules or therealities of the industrial context, employees are required towait before they can perform their first principal activity,they are engaged to wait and must be compensated. Con-struing the FLSA and the Portal-to-Portal Act to permitsuch walk and wait time to go uncompensated in someinstances, such as where the first principal activity involvesthe donning and doffing of required safety equipment, willupset the established law in other contexts, heighteninglitigation risks and leading to uncertainty in many indus-tries where expectations concerning walk, travel, and waittime have long been settled. The absence of any principleguiding the determination of which compensable activitiesbegin the work day and which do not will further aggravatethese problems.

The first principal activity rule provides a bright-line testwhich simplifies compliance and enforcement, decreasesuncertainty, and reduces litigation risks and costs. At thesame time, this rule conforms with the plain language ofthe Portal-to-Portal Act, and is consistent with establishedlaw and regulations. Unlike the alternative rule proposedby the Tum concurrence, Tum v. Barber Foods, Inc., 360F.3d 274, 284 (1st Cir. 2004) (Boudin, J., concurring), this

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bright-line test serves the interests of both employers andemployees, as well as the larger economic and societalinterests of encouraging compliance with the law andpromoting economic efficiency and productivity in businessplanning and decision-making, interests which are amongthe most important goals of the FLSA and the Portal-to-Portal Act.

ARGUMENTI. THE FAIR-LABOR STANDARDS ACT AND THE PORTAL-

TO-PORTAL ACT ESTABLISH A FIRST PRINCIPAL ACTIV-ITY RULE GOVERNING THE COMPENSABILITY OF WALKAND WAIT TIME.

The FLSA was passed in 1938 to eliminate labor condi-tions “detrimental to the maintenance of the minimumstandard of living necessary for the health, efficiency, andgeneral well-being of workers.” 29 U.S.C. § 202. The Portalto Portal Act of 1947 (“Portal Act”), while creating certainexceptions to the FLSA, made no change to this fundamen-tal policy. 29 C.F.R. § 790.2. The two acts carry out thisnational policy by guaranteeing that employees are paid forall “hours worked” within the workday.

A. The First Principal Activity Rule Requires Com-pensation for Walk and Travel Time Subsequent toan Employee’s First Principal Activity and Priorto the Last Principal Activity of the Day.

Section 4 of the Portal Act relieves the employer of theobligation to pay employees for travel time, but only wherethe travel time occurs “either prior to the time on anyparticular workday at which [the] employee commences, orsubsequent to the time on any particular workday at whichhe ceases [his or her] principal activity or activities.” 29U.S.C. § 254(a). The Portal Act does not affect the compen-

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sability of activities performed within the “workday,” anddoes not change the rule that travel “all in a day’s work,”that is, travel time within the workday, is compensable as“hours worked.” See 29 C.F.R. § 785.38; see also 29 C.F.R.§ 790.6 (The Portal Act “[has] nothing to do with thecompensability under the Fair Labor Standards Act of anyactivities engaged in by the employee during [the work-day].”). The Portal Act thus establishes a bright line rulethat the workday begins with the start of an employee’sfirst principal activity and ends with the completion ofthe employee’s last principal activity. See 29 C.F.R.§§ 790.6(a), (b) (defining workday for purposes of the PortalAct). Any travel time occurring after the first principalactivity and prior to the last principal activity is compensa-ble under the FLSA and remains so under the Portal Act.

In Steiner v. Mitchell, 350 U.S. 247 (1956), this Court heldthat “the term ‘principal activity or activities’ in Section 4[of the Portal Act] embraces all activities which are anintegral and indispensable part of the principal activities.”Id. at 252-53 (internal quotation marks omitted). UnderSteiner, the donning and doffing of necessary protectivegear is an integral and indispensable part of an employee’sprincipal activities. Thus, when the donning or doffing ofnecessary protective gear is the first or last activity inwhich the employee engages, this serves to begin or end theworkday, and thereby limits the applicability of Section 4 ofthe Portal Act. Consequently, any travel or walk time thatoccurs after one of these activities is “all in a day’s work,”and is compensable under the FLSA as amended by thePortal Act.

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B. The First Principal Activity Rule Requires Com-pensation for Wait Time Incident to an Employee’sFirst and Last Principal Activities of the Day.

Similarly, Section 4 of the Portal Act excludes pre- orpost-shift waiting time from compensability only where thattime occurs prior to the first principal activity or subse-quent to the last principal activity, but has no effect wherethe wait time is an integral part of the principal activities.29 U.S.C. § 254(a); see 29 C.F.R. § 790.7(h) (wait time maybe regarded as preliminary or postliminary, or may be “anintegral part of the employee’s principal activities” depend-ing on circumstances); id. § 790.8(a) (Portal Act has noeffect on compensability of principal activities). Thus, underthe Portal Act’s bright-line first principal activity test fordetermining the boundaries of the compensable workday,wait time which is integral and indispensable to an em-ployee’s first or last principal activity of the day is outsidethe scope of Section 4 and is compensable.

In Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944), thisCourt found wait time compensable under the FLSA wherethe employee was “engaged to wait” rather than “wai[ting]to be engaged.” This distinction is currently codified in U.S.Department of Labor regulations concerning “on duty,” “offduty” and “on call” time. See 29 C.F.R. §§ 785.15-785.17.Under these regulations, the determinative factor inwhether an employee is “engaged to wait” is whetherwaiting is an “integral part” of a principal activity, suchthat the time spent waiting “belongs to and is controlled bythe employer,” id. § 785.15, and is consequently “beyond[the employee’s] control.” Id. § 790.7(h). In cases wheredonning necessary safety equipment qualifies as the firstprincipal activity that starts the compensable work day,time spent waiting for that equipment at distributionstations is an integral part of donning it, is controlled by theemployer, and cannot effectively be used for the employee’sown purposes, and is therefore compensable under the

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FLSA and the Portal Act.

C. The First Principal Activity Test Is Not Limited bythe De Minimis Rule.

Pre-shift and post-shift activities that are integral andindispensable to an employee’s principal activities serve totrigger the workday for purposes of Section 4, even wherethe time spent on each activity, viewed in isolation, is deminimis. The de minimis concept applies to relieve theemployer of liability for otherwise compensable time which,in the aggregate, is negligible, and where, “in light of therealities of the industrial world,” computation of the time isdifficult or impossible. Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680, 692 (1946). However, a discrete activitycannot be deemed de minimis in isolation. Rather, time canonly be disregarded under this theory when it is de minimisin the aggregate. Lindow v. United States, 738 F.2d 1057,1063 (9th Cir. 1984). That is, the determination of whetherthe amount of compensable but uncompensated time is deminimis can be made only after it has been determinedwhich time is compensable. Thus, the questions of whether(1) wait time that occurs in connection with compensabledonning and doffing, and (2) travel or walk time whichoccurs subsequent to compensable donning are themselvescompensable must be answered before the de minimis rulecan be applied. For this reason, these questions cannot beanswered by reference to the de minimis rule. To make a deminimis determination with respect to an isolated activity,and thereby to determine whether travel or wait time iscompensable, as the court did in Tum, puts the cart beforethe horse.

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II. THE FIRST PRINCIPAL ACTIVITY RULE HAS CONSIS-TENTLY BEEN APPLIED TO DETERMINE THE COMPENSA-BILITY OF TRAVEL, WALK, AND WAIT TIME, ANDINFORMS PRACTICE AND EXPECTATIONS IN OTHERINDUSTRIAL CONTEXTS.

A bright line rule that donning and doffing necessarysafety equipment (or, if applicable, waiting in line to do so)is the first principal activity and that all subsequent timeand attendant wait time is compensable as part of theordinary workday is consistent with settled law concerningtravel and wait time in a wide variety of industrial contexts.Because the first principal activity test has been so consis-tently applied in nearly every case concerning travel andwait time, it informs the practice and expectations ofemployers and employees. Furthermore, because there is noprincipled basis for distinguishing these other contexts fromthe situation here, rejection of the first principal activitytest in this case will upset these expectations and lead togreat uncertainty concerning the rights and obligations ofemployers throughout the economy.

A. Existing Law Makes Travel and Walking TimeCompensable Where It Occurs Subsequent to theFirst Principal Activity

Numerous cases outside the protective gear contextaddress the question of when pre-shift travel time iscompensable and when it can be excluded under Section 4of the Portal Act. These cases consistently hold that whereprincipal activities are performed prior to the start of anemployee’s shift, any subsequent travel time must becompensated.

In a recent line of cases concerning the constructionindustry, courts have addressed the question of whethertravel between the employer’s shop or yard and the job siteat the beginning and end of the workday must be compen-

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sated. This question arises when employees are required toreport to the yard prior to proceeding to the job-site. Nearlyevery court has held that where some “work,” howeverminimal, is performed at the yard, including work activitieswhich are integral and indispensable to a principal activity,the travel must be compensated. Examples of such principalactivities have included completing paperwork, loadingtools, performing maintenance on trucks, and removingdebris from trucks at the end of the day. See, e.g., Hermanv. Rich Kramer Const., Inc., 163 F.3d 602, 1998 WL 664622(8th Cir. 1998) (unpublished table decision) (travel timecompensable where construction foremen loaded trucks,received crew assignments, and studied blueprints prior totraveling from employer’s shop to job site and filled outtime-sheets, unloaded and locked trucks, and securedequipment upon return to shop); O’Brien v. Encotech Const.,No. 00 CV 1133, 2004 WL 609798, *4 (N.D. Ill. Mar. 23,2004) (“on any day that the [employee] performed prepara-tion or cleanup that constituted a ‘principal activity,’ notjust ‘preliminary’ or ‘postliminary’ activity . . . , the [em-ployee’s] travel time to a job site after preparation or froma job site before cleanup would be [compensable].”);Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 C5755, 2004 WL 1882449, *3 (N.D. Ill. Aug. 18 2004) (same);Breen v. Concrete By Wagner, Inc., No. 98 C 3611, 1999 WL1016267, *12 (N.D. Ill. Nov. 4, 1999) (same).

Likewise, in the context of a temporary labor agency,where employees meet at a central dispatch hall to receivetraining or instruction or to perform other activities prior tobeing dispatched for the day’s work, travel time from thedispatch hall to the place of work is compensable. See, e.g.,Preston v. Settle Down Enterprises, Inc., 90 F. Supp. 2d1267, 1281 (N.D. Ga. 2000). But see Powell v. NorthwesternResources Co., No. 03-S1244, 2004 WL 1576572 (5th Cir. Jul15, 2004) (travel time not compensable where pre-travelactivity was not “work” because not in the ordinary course

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of business and not done for the benefit of the employer).However, where the employee performed no work at thedispatch hall prior to being dispatched, travel time from thehall was not compensable. Preston, 90 F. Supp. 2d at 1281.

Similar results have been reached with respect to travelfrom a designated meeting place in other industries. See,e.g., Dole v. Enduro Plumbing, No. 88 7041-RMT, 1990 WL252270, *4-5 (C.D. Cal. Oct. 16, 1990) (plumbers’ travel timecompensable where workers required to report to desig-nated meeting place, perform work, and carry tools to jobsite); Marshall v. Boyd, No. LR C 77-4, 1979 WL 1922, *3(E.D. Ark. Apr. 4, 1979) (“Where the [inventory control]employees are required to report to a meeting place toreceive instructions, to perform other work, or to pick upand to carry tools or materials, the travel from the desig-nated meeting place to the work place in [sic] part of theday’s work and must be counted as hours worked.”);Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721 (5th Cir.1961) (travel time of truck drivers between truck yard andmaterial plant compensable where truck was serviced inyard prior to travel to material plant and cleaned andrefueled upon return to the yard).

Another line of cases deals with the compensability oftravel time from service workers’ homes to their first jobassignments each day. In these cases, courts have held thatwhere the employee performs some required compensablework activity at home prior to the first service call, such asinitiating or completing paperwork, scheduling appoint-ments with customers, or receiving and inventoryingsupplies, the subsequent travel time to the customer’slocation is compensable. See, e.g., Dooley v. Liberty Mut. Ins.Co., 307 F. Supp. 2d 234, 242-43 (D. Mass. 2004) (“Becausethe plaintiffs’ drive to the first appraisal site does not occur‘prior to the time [the] employee commences [his or her]principal activity or activities,’ the drive is outside theambit of the Portal-to-Portal Act.” (quoting 29 U.S.C.

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§ 254(a)); Boudreaux v. Banctec, Inc., No. Civ. A. 03-2111,2005 WL 517494, *5 (E.D. La. Feb. 22, 2005) (“[W]hether .. . travel time [from home to first service stop] is compensa-ble depends on whether a principal activity is being per-formed at home.”). In such cases, the compensability of thehome to job-site travel time is within the control of theemployer, who can require the worker to perform workactivities only on employer or customer premises. Moreover,application of the bright-line rule in these cases preventsthe employer from avoiding liability for travel time simplyby moving pre-travel work from an employer-supplied officeto an employee’s home office.

Finally, in a line of cases factually quite similar to thedonning and doffing cases here, the U.S. Court of FederalClaims and its predecessors have considered whetherfederal guards and prison personnel must be compensatedunder the FLSA for walk time to their duty stations afterrequired stops in control rooms or equipment rooms inwhich equipment integral to their job duties was retrieved.See Amos v. United States, 13 Cl. Ct. 442, 449-50 (Cl. Ct.1987); see also International Business Investments, Inc. v.United States, 11 Cl. Ct. 588 (Cl. Ct. 1987); Whelan Sec. Co.,Inc. v. United States, 7 Cl. Ct. 496 (Cl. Ct. 1985); Baylor v.United States, 198 Ct. Cl. 331 (Ct. Cl. 1972).

In all of these cases, travel time that occurs subsequentto an employee’s performance of his or her first principalactivity or prior to the last principal activity is outside theexclusion of the Portal Act and is compensable. These casesare consistent with the first principal activity rule estab-lished by the Portal Act, and show that this rule is well-grounded in the case-law and widely applied to questions oftravel and walk time in many contexts.

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B. Under Existing Case-Law, Wait Time Incident to aPrincipal Activity, Such as Donning or DoffingRequired Safety Equipment, is Compensable.

Established law concerning wait time is likewise consis-tent with the first principal activity rule. Cases addressingthe compensability of pre-shift and post-shift wait timehave uniformly held that where waiting is integral to anemployee’s principal activity and the employee is therefore“engaged to wait,” the wait time is compensable even whereit occurs prior to or after the work shift.

Numerous courts have recognized that pre-shift wait timemust be compensated when an employer requires theemployee to be on the premises but is not ready for or ableto allow the employee to engage in “productive” work. See,e.g., Mireles v. Frio Foods, 899 F.2d 1407 (5th Cir. 1990)(wait time held compensable where employees at frozenfoods plant were required to sign in and be on productionline but there was a delay in the arrival of produce or amechanical failure at the plant); Wales v. Jack M. Berry,Inc., 192 F. Supp. 2d 1269 (M.D. Fla. 1999) (pre-shift timespent by agricultural workers waiting for equipment to beavailable or inspections to occur held compensable); Sedanov. Mercado, No. Civ. 92-0052-HB, 1992 WL 454007, *3(D.N.M. Oct. 8, 1992) (“Time spent . . . waiting in the fieldsfor the fields to dry . . . , for trailers to arrive, or for theiremployer to prepare to begin the work day is predominatelyfor the benefit of the employer” and is compensable underthe FLSA); Fields v. Luther, No. JH-84-187S, 1988 WL59963 (D. Md. May 4, 1988) (time harvest crew sat idle infields waiting for dew on tomatoes to dry was compensableunder the FLSA because it was of no benefit to the plaintiffsto sit there and the employer had required them to be thereat that hour); Brock v. DeWitt, 633 F. Supp. 892 (W.D. Mo.1986) (wait time compensable where restaurant workerswere required to report to work at specified time but couldnot clock in until the employer determined that there was

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enough business to justify allowing them to do so).Under these cases, even short periods of time spent

waiting prior to the performance of productive work arecompensable where the wait resulted from the nature of thework or the realities of the workplace. Mireles, 899 F.2d at1413 (compensability of idle time determined by “engagedto wait” test, not by “reasonableness” of the wait time).These cases thus apply the Portal Act’s bright-line rule thatwhen an employee is engaged to wait to perform his or herfirst principal activity, the wait time is compensable.

C. Rejecting the Bright-Line Rule in this Case WillUpset Settled Expectations Throughout the Econ-omy.

As these cases illustrate, courts in nearly every otherindustry have applied a bright line first principal activityrule in determining the compensability of walk, travel, andwait time. The Tum court’s rejection of the first principalactivity rule in favor of an ill-defined ad hoc determinationtherefore represents a radical departure from existing law,and threatens to jeopardize the settled expectations of bothemployers and employees under the federal overtime laws.

Tum is wholly inconsistent with established law on thecompensability of pre-shift travel time. Tum found thedonning and doffing of at least some protective equipmentto be an integral and indispensable activity. Nevertheless,in finding post-donning walk-time non-compensable, Tumcomes to precisely the opposite result concerning relatedwalk time from the cases described above, in which someitem of compensable work was sufficient to start theworkday and take subsequent travel time out of the scopeof Section 4 of the Portal Act.

In Tum, the court found the first principal activity rule tobe “an expansion of the ordinary ‘workday’ rule.” Tum, 360F.3d at 280. As the established law shows, however, the

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ordinary workday rule applied in nearly every other contextis nothing other than the first principal activity rule. Thatis, Tum, rather than the first principal activity rule,represents a substantial departure from existing law. Yetthe Tum court puts forth no principle or policy that wouldpermit, much less require, such a departure here. While theamounts of time involved in Tum were small in comparisonwith the travel time in the construction and other cases, thefederal guard cases involved, if anything, even smalleramounts of time. Moreover, the compensability of traveltime or other preliminary or postliminary activities is notdetermined by reference to the length of time involved. Thefact that the travel time in the construction cases was solong does not make it compensable under the statute. Vegav. Gasper, 36 F.3d 417, 425 (5th Cir. 1994) (citing 29 C.F.R.§ 790.7) (finding two hours each way of travel time oncompany buses not compensable where no work wasperformed prior to or during the bus ride). Conversely, thefact that the walk time in the Tum case was short does notmake it non-compensable.

Similarly, the established case law makes pre-shift waittime compensable where the wait time is part of a principalactivity, and there is no principled distinction between thatwait time, and the wait time at issue in the instant matter.Like the employees who were compensated in Mireles andthe other cases discussed above, an employee who is waitingin line to retrieve and don safety equipment is on theemployer’s premises, is waiting for the employer’s benefit,and is not at leisure to use the time as she sees fit. Wheredonning safety equipment is a principal activity underSteiner, and the employee is at the equipment distributionstation, ready to perform that activity, but cannot do so “forsome reason beyond his control,” 29 C.F.R. § 790.7(h) (suchas an insufficient number of distribution stations or thepresence of a number of employees who also require theequipment), the employee is “engaged to wait,” and must be

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compensated.The Tum rule would upset the settled principle that

employees must be paid for wait time whenever they are“engaged to wait.” It would find some instances in which anemployee was engaged to wait non-compensable because,notwithstanding that finding, the wait time in thoseinstances is preliminary or postliminary activity under thePortal Act. Tum, 360 F.3d at 282. Presumably, the samecould be said of an employee who arrives at work, and findsthat there is nothing for him to do because needed parts arenot available or a machine is out of service, although federalregulations require compensation in such circumstances. 29C.F.R. § 785.15. However, Tum provides no basis fordistinguishing this clearly compensable situation from onein which employees must wait to don required safetyequipment.

If an employee who can watch television, read, and eventravel within a reasonable distance of a jobsite premises canbe compensated for “wait time” on the grounds that thistime is for the benefit of the employer and the employee’sfreedom is restricted, see 29 C.F.R. §§ 785.16-785.17, thensurely an employee who is actually on the employer’spremises and has no choice to do anything but stand in lineand wait for necessary safety equipment her employerrequires her to wear is “engaged to wait.” Simply put, anemployee who must wait in line for necessary safetyequipment cannot use this time effectively for her ownpurposes and should be compensated for this time.

Thus, if this Court affirms Tum’s holding concerning thecompensability of wait and walk time in the donning anddoffing context, it will upset the settled case law in innu-merable other contexts and industries, and will introduceuncertainty into current expectations in a wide array offields in which employees have routinely been compensatedfor pre- and post-shift travel and wait time.

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Accordingly, the same bright line “first principal activity”test should control here as it does in other contexts. Oncethe donning and doffing at issue is determined not to becovered by the changing clothes provisions of 3(o) or thepreliminary and postliminary activity provisions of thePortal Act, there is no basis in the FLSA or the Portal Actfor a special donning and doffing exception to the generalrule that the first principal activity starts the workday, andthere is no basis differentiating donning and doffing fromany other integral and indispensable activity for purposesof walk or wait time.

III. THIS COURT SHOULD RECONFIRM THE BRIGHT LINERULE THAT THE COMPENSABLE WORKDAY BEGINSWITH THE FIRST PRINCIPAL ACTIVITY, WHETHER ORNOT THE TIME FOR THE ACTIVITY IS DE MINIMIS.

A. The First Principal Activity Rule is Simplest forEmployers and Regulators to Administer, and Willbe Less Subject to Abuse than a Rule PermittingEmployers to Carve up the Workday.

The bright-line “first principal activity” test establishedby the Portal Act and properly applied by the Ninth Circuitin Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), servesthe interests of employers, employees, and regulators alike.It provides clear notice to employers and employees of theirrights and obligations under the FLSA and the Portal Act,simplifying both compliance and enforcement. In contrast,the ad hoc rule applied in Tum, and Reich v. IBP, Inc., 38F.3d 1123 (10th Cir. 1994) (“Reich II”), permits some traveltime that occurs after an initial principal activity to beexcluded while requiring compensation for other traveltime, and requires compensation for wait time in connectionwith some compensable principal activities but not others.Such a rule will create uncertainty regarding the rights andobligations of employees and employers, and may be subject

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to manipulation and abuse by employers, thereby under-mining the goals of the FLSA.

1. The First Principal Activity Test Provides aClear Rule that Serves the Interests of AllStakeholders.

The first principal activity rule simply requires that oncean employee has begun her compensable work, she must bepaid for all subsequent hours worked, including travel timewhich would otherwise fall under Section 4 of the Portal Act(and hence go uncompensated) if performed before the firstcompensable activity. It also requires that any time neces-sarily spent waiting in connection with an employee’s firstor last principal activities must be compensated. This ruleserves employers’ interests by encouraging employers toarrange their workplaces efficiently by minimizing the timeemployees spend on these activities. It serves employees’interests by encouraging employers to make efficient use oftheir employees’ work time. And it serves the wider socialand regulatory interest animating the FLSA by ensuringthat employers pay the full cost of their business decisionsconcerning how to arrange their workplaces and businessprocesses.

It was this latter interest that motivated Congress to passthe FLSA in 1938, and it is this stated congressional policywhich should be of foremost concern in interpreting thesestatutes and formulating general rules, as well as inapplying the FLSA and the Portal Act to the specificcircumstances here. In Section 2 of the FLSA, 29 U.S.C.§§ 202, Congress expressed its concern about the adverseimpact on interstate commerce of employment conditionsdetrimental to the health, safety and well-being of workers.In particular, Congress was concerned that poor workingconditions, including the failure to pay workers for all hoursworked, “constitute[d] an unfair method of competition in

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2 The issues presented by this appeal will affect employees in numerouslines of work, not just those employed in meat or poultry processing plants.Employees who work in refineries, laboratories, power stations, construc-tion sites, chemical plants, clean rooms, plumbing companies, insurancecompanies, call centers, and may other industrial contexts may be affectedby the outcome of this case.

commerce.” Id. Thus, it is the policy of the FLSA, asclarified by the Portal Act, to ensure that employees arepaid for all work activities performed between their firstand last principal activities of the day, particularly wherethe time spent on those activities is within the control of theemployer.

The Tum rule improperly would permit employers to startand stop the time clock, and cause employees to go uncom-pensated for time spent in the service of the employerduring the workday, even when the amount of that time isentirely within the employer’s control. Where time spentwaiting to retrieve required safety equipment and walkingafter donning is entirely within the control of the employer,it should be compensated. Only the employer can controlthe arrangement of equipment distribution points, lockerrooms, and the production floor to minimize the walk andwait time required for employees to don or doff protectivegear and to perform other integral and indispensable pre-and post-shift activities. See, e.g., Reich v. Monfort, Inc., No.92-M-2450, 1995 WL 817796 (D. Colo. Oct. 19, 1995), aff ’d144 F.3d 1329 (10th Cir. 1998) (noting that wait time forwash stations had been shortened after the employer addedmore wash stations).

Take, for example, a hypothetical meat processingcompany that has 100 employees on its production line atany given time.2 Each of these employees is required to dona number of pieces of safety and sanitary gear. This em-ployer can structure its operations in a number of different

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ways that would have a significant impact on the amount oftime it takes each employee to retrieve and don thisequipment and to travel to her work station after doing so.

Under Scenario A, the employer requires all 100 employ-ees to report to their work stations on the production line atexactly the same time. The employer requires all protectiveequipment to be obtained from and returned to an equip-ment distribution station, but provides only one suchstation. The distribution station is on the opposite side ofthe production floor from the locker room, where employeesgo to don the required protective equipment. The employeescannot enter the production floor until they have donnedthe safety equipment, and must walk around the productionfloor in order to reach the locker room and don their gear.Once they have donned their protective gear, variousemployees must obtain other required equipment fromseparate distribution stations. Thus, upon arrival at work,all employees must wait in line at the single protectiveequipment distribution station. Once an employee has herprotective gear, she must walk around the production floorto the locker rooms to don this equipment. Various employ-ees must then wait in line again to retrieve other requiredequipment. The employee must then walk back to theopposite side of the plant to enter the production floor. Atthe end of the day, employees must clock out, walk aroundthe production floor to the locker room, doff the protectiveequipment, wait in line at cleaning stations to clean theequipment, and then again stand in multiple lines to returnequipment before they may leave the plant.

Under Scenario B, the employer has multiple equipmentdistribution stations located just inside the plant entrancewhere employees can retrieve all of the equipment theyneed at one time. The locker rooms are directly adjacent tothe distribution stations, and the employees enter theproduction floor directly from the locker rooms. In addition,employee start times are staggered so that everyone is not

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arriving at the distribution stations at exactly the sametime.

Under Scenario A, each of the 100 employees knows thathe or she is likely to face long lines and walks in connectionwith retrieving the safety and sanitary equipment that theymust don before they can even enter the production floor.Because tardiness can result in discipline (includingtermination), these employees have no choice but to arriveat work long before their scheduled “start time” on theproduction line. If this Court rules that walk and wait timein connection with retrieving necessary safety equipment isnot compensable, it is the employees, rather than theemployer, who will bear the entire cost of this inefficiency.As noted above, this is contrary to the purpose of the FLSA.

Although the employees have no control over the timespent on pre- and post-shift activities in this scenario, theemployer does have a number of choices that could reducethe walk and wait time the employees must endure inconnection with the donning and doffing of the requiredgear. As demonstrated in Scenario B, wait times could bereduced by slightly staggering start times and/or by provid-ing additional equipment distribution stations, and walktime could be reduced by placing these stations at anefficient location. Even where physical or fiscal constraintsmake it difficult or costly for the employer to rearrange aplant, it is a simple matter of fairness as well as the soundpolicy of the FLSA that the employer should bear the costof its business decisions.

Under the Tum rule, an employer has no incentive tomake efficient choices to reduce walk and wait time as thecosts of these inefficiencies will be borne entirely by itsemployees. In fact, under the rule proposed by JudgeBoudin, see infra Part III.B, the employer may have anincentive to make the arrangement inefficient by carvingthe preparatory activities into discrete units which, in

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isolation, are de minimis, and separating each such activitywith uncompensated waiting or walking time. The result isthat the employer can unilaterally impose substantial timeburdens on employees without having to bear the attendantcosts. This is exactly the type of detrimental workingcondition Congress sought to address when it passed theFLSA. Only a bright-line rule that employers must payemployees for all work after the employee’s first principalactivity and prior to the employee’s last principal activity,and for all wait time attendant to those activities, givesemployers the incentive to minimize the amount of time anemployee loses waiting for equipment or walking from anequipment room to a work station.

The court in Tum expressed concern that a bright linerule would simply reverse the current situation and permitemployees to impose substantial costs on employers. Thecourt gives as an example “an employee who dons requiredequipment supplied by the company at 5:00 a.m.—eventhough he is not required to punch in to work and does notpunch in until 8:00 a.m.” Tum, 360 F.3d at 280-81. Thissituation is again entirely within the control of the em-ployer, who can require that equipment be donned at aparticular time and place that reduces his liability. Indeed,the FLSA imposes on the employer the obligation to ensurethat employees do not perform undesired work. See, e.g., 29C.F.R. § 785.13 (management has a duty to exercise controland see that work is not performed that it does not want tobe performed). Moreover, if the concern is that the employeewho arrives at work early will be compensated for severalhours of leisure time simply because she has alreadydonned protective gear, such time is already excludablefrom compensability by regulations concerning off-dutytime. See 29 C.F.R. § 785.16; see also 29 C.F.R. § 790.7(h);Skidmore, 323 U.S. at 137.

Thus, current regulations already distinguish betweencases where an employee voluntarily shows up early and

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cases where the employer requires her to do so, either viaworkplace rule or as a practical result of the employer’sbusiness decisions. An employee who voluntarily shows upand dons equipment earlier than she needs to would not beentitled to compensation. However, when an employee is defacto required to report to work early so that she can donthe equipment necessary for her to be on the production lineat the time the employer requires her to be there, this isbeyond the employee’s control and should be compensatedbecause it is done for the benefit of the employer—that is,because the employee is “engaged to wait.” Under the brightline rule, once it is determined that the donning of protec-tive equipment is compensable, and that associated waittime is time for which employees are “engaged to wait,”there is no need for a further analysis of whether the waittime may nevertheless be “preliminary” under the PortalAct.

2. A Bright Line Rule Will Reduce Litigation OverWhich Activities Begin and End the Workday.

Under the FLSA, the Portal Act, and Department ofLabor regulations, it is clear that certain types of traveltime during the workday are compensable. For example,travel time from the place of performance of one principalactivity to the place of performance of another is compensa-ble. See 29 C.F.R. § 785.38; 29 C.F.R. § 790.7(c). Similarly,“[w]here an employee is required to report at a meetingplace to receive instructions or to perform other work there,or to pick up and to carry tools, the travel from the desig-nated place to the work place is part of the day’s work.” 29C.F.R. § 785.38. Such travel is excluded from the coverageof Section 4 of the Portal Act because it occurs after theemployee commences his principal activities. The issue iswhich activities trigger the workday and remove all subse-quent travel or other pre-shift activities from the coverageof Section 4.

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Wait time is likewise compensable under the Portal Actwhen it occurs during the course of the work day, unless theemployee is “completely relieved from duty” for a sufficientperiod of time. 29 C.F.R. §§ 785.15, 785.16. The issue withrespect to wait time incident to the first principal activityis whether the employee is waiting to be engaged (which isnot compensable) or is engaged to wait (which is compensa-ble). Skidmore, 323 U.S. at 137. If the employee is engagedto wait, she is by definition performing a principal activityoutside the coverage of Section 4 of the Portal Act, and mustbe compensated.

Alvarez v. IBP, Inc. resolves these issues with a simpleand straightforward rule. 339 F.3d at 906-07. UnderAlvarez, once it is established that donning protective gearor any other preparatory work activity is integral andindispensable, all subsequent work and any attendantemployer-controlled wait-time is compensable. Id. at 906.Tum, on the other hand, does not resolve these issues witha general rule, but essentially adopts an ad hoc standardthat will require every court facing a “walk time” or “waittime” issue to determine whether an activity the court hasalready deemed integral and indispensable also justifiescompensation for attendant wait time or subsequent walktime. 360 F.3d at 280-81, 282. This second determination iswholly unnecessary and invites a host of problems, includ-ing the potential for serious inconsistencies.

Similarly, with respect to wait time, the first principalactivity test provides that once it is established that anemployee is “engaged to wait” with respect to his or her firstprincipal activity, the wait time is compensable. In contrast,Tum complicates this straightforward rule, injectingunnecessary additional issues and providing no guidelinesfor resolving them. Thus, although the First Circuit recog-nized that “[w]ait time is compensable when it is part of aprincipal activity, but not if it is preliminary orpostliminary activity.” Tum, 360 F.3d at 282 (quoting Vega

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v. Gasper, 36 F.3d 417, 425 (5th Cir. 1994)), the courtconcluded that “the short amount of time spent waiting inline for gear is the type of activity that the Portal-to-PortalAct excludes from compensation as preliminary.” Id. Thecourt emphasized that “a line must be drawn” betweencompensable and non-compensable wait time, but providedno guidelines for drawing that line. In fact, the Tum court’sconclusion that time for which employees are “engaged towait” may nevertheless qualify as non-compensable prelimi-nary or postliminary activity under Section 4, id., upsetsthe existing bright line rule established by this Court inSkidmore, and codified in 29 C.F.R. § 785.15, that employ-ees must be paid for all such time. Moreover, under federalregulations and existing law, the shortness of the wait timeis a factor leaning towards compensability. See 29 C.F.R.785.16; Mireles, 899 F.2d at 1413 (finding shortness of wait-time favors compensability, and rejecting rule making“reasonable” waits non-compensable). The Tum decisionthrows this established law into disarray by improperly andinexplicably re-weighing this factor against compensability.

Thus, Tum’s ad hoc rule provides no principled basis fordetermining which activities are compensable and whichare not, and in fact seriously undermines existing rules andguidelines established by the executive department and thisCourt. Moreover, Tum’s unprincipled test will increaselitigation risks for both employees and employers, increas-ing the likelihood that employees will compromise meritori-ous case for far less than their actual value, and thatemployers will settle unmeritorious cases rather than riskan adverse finding on the compensability of walk or wait-time.

The problems created by this ad hoc rule are illustratedin Reich II, which was heavily relied upon by the Tum courtand the defendants in the case below. The Reich II opinionand other decisions in the related litigation demonstrate thedifficulty courts face in the absence of a bright line rule in

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determining which activities trigger the start of the com-pensable workday. See Reich v. IBP, Inc., 820 F. Supp.1315, 1325 (D. Kan. 1993) (“Reich I”), aff ’d 38 F.3d 1123(10th Cir. 1994); Reich v. IBP, Inc., No. 88 2171, 1996 WL137817, *1 (D. Kan. Mar. 21 1996) (“Reich III”), aff’d subnomine Metzler v. IBP, Inc., 127 F.3d 959 (10th Cir. 1997).In Reich I, the district court found that both donningrequired protective gear and retrieving a knife from theknife room were integral and indispensable activities for theknife-using employees, and that both activities werecompensable. Reich I, 820 F. Supp. at 1325. At the sametime, the court found that the wait time to retrieve protec-tive gear, and the walk time after donning it were excludedfrom compensability by the Portal Act, while the wait andwalk time in connection with knife retrieval was compensa-ble. Id. The court’s stated basis for this finding was thatknife retrieval, which occurred after the donning of protec-tive gear, was nevertheless the first principal activity of theday. Id.

The result of the district court’s conclusions was thatemployees were off the clock while waiting for protectivegear, on the clock while donning it, off the clock whilewalking to the knife room, and then on the clock againwhile waiting for and retrieving their knives and walkingfrom the knife room to the production floor. However, thecourt put forth no principled reason for distinguishingbetween the donning of protective gear and the exchange ofknives at the knife room in terms of starting the workday.Both activities were found to be “integral and indispens-able,” Reich I, 820 F. Supp. at 1326. In addition, while thecourt did not apply the de minimis rule in determiningwhich activities were compensable, id. at 1327 n.17, any ofthem viewed in isolation could have been deemed deminimis. See Metzler, 127 F.3d at 962-63 (finding reason-able time of “three minutes to wait for and exchange knives[and] three minutes to put on and take off personal protec-

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tive equipment”). Nor was there any practical reason fordistinguishing these two activities. While part of the court’sreasoning was that the sequence of activities upon arrivalat the plant varied from employee to employee, this varia-tion appears to have encompassed both donning and knifeexchange. See Reich I, 820 F. Supp. at 1321. Moreover, thecourt ultimately imposed liability only for the “reasonabletime” required for each of the pre-shift activities it found tobe compensable, and thus, the sequence of activities wasirrelevant to the employer’s liability. Reich III, 1996 WL137817, at *4. Thus, the variations in routine fail to injectany principle into the exclusion of post-donning walk time.Only the bright-line first principal activity rule will bringconsistency and predictability to the resolution of theseissues in individual cases.

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B. The Alternative Rule Suggested by the Tum Con-currence is Impracticable and Subject to the SameAbuses as an Ad Hoc Rule.

The concurrence in Tum suggests a rule that only donningand doffing time that is not de minimis triggers the start orend of the workday for purposes of Section 4 of the PortalAct. 360 F.3d at 285 (Boudin, J., concurring). Judge Boudinargues that such a rule would be equally workable andwould be equally consistent with the language and policy ofthe FLSA, the Portal Act, and Supreme Court precedent. Asexplained above, however, such a rule can only be based ona misapplication of the de minimis concept. Moreover, thisproposal is less desirable from a policy perspective for anumber of reasons.

First, as illustrated in the Reich v. IBP case, the rulewould be difficult to apply. Viewed in isolation, each of theactivities at issue in that case might be called de minimis.The court found that the donning and doffing of protectivegear together required only three minutes. Metzler, 127F.3d at 962. Similarly, exchanging knives required threeminutes, and post-shift cleaning of protective equipmentrequired two minutes. Id. at 962-63. None of these activitiesreaches the typical threshold for finding it more than deminimis, and thus, none would trigger the start of theworkday for purposes of walk and wait time under JudgeBoudin’s rule. Indeed, even in aggregate, these activitiesrequired less than ten minutes (excluding walk and waittime), the threshold some courts use in making de minimisdeterminations. Nevertheless, the district court found someof the walk and wait time to be compensable. The inclusionof this time pushed the overall uncompensated time tofourteen minutes, which the court found was notde minimis. Id. Under Judge Boudin’s rule, none of thewalk and wait time would have been compensable, and theother activities would have likely been found de minimis

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3 Even relatively small amounts of walk and wait time can add up tosubstantial amounts in the aggregate. For example, in Reich, the walk andwait time attendant to pre-shift knife retrieval and post-shift cleaning, whichthe court found compensable, amounted to six minutes per day. Six minutesper day, five days per week adds up to one half hour per week and 25 hoursper 50-week work year. As a result, this seemingly insignificant amount oftime could result in an employee working for well over half a week eachyear without compensation. Had walk and wait time attendant to donningand doffing protective gear been included, the amount of time would beeven more significant.

and non-compensable, even in the aggregate.3

Second, Judge Boudin’s rule will leave in place—and infact aggravate—the litigation-provoking issue of whatactivities are de minimis. Under the Boudin rule this willbecome the threshold issue in travel-time cases, and it willbe contested in nearly every case, even those where aggre-gating the travel time with other pre-shift work would takethe case out of the de minimis rule. Third, and for the samereason, the rule will leave employers just as uncertain oftheir obligations concerning walk and wait time as they areunder present circumstances.

Judge Boudin raises the specter that the first principalactivity rule will completely eviscerate the Portal Act byrequiring compensation for walk time even after insubstan-tial activities such as donning a hard hat at a plant en-trance. This concern is misplaced. Under the first principalactivity rule, walk and wait time is only compensable afteran activity has been found to be a principal activity orintegral and indispensable to a principal activity. The lowercourts have ample experience making such determinations,and this Court need not analyze whether donning a hardhat in any particular circumstance is a principal activity. InTum, the district court already has found the donning anddoffing of certain protective gear to be a compensableactivity under the facts of the case, and the First Circuit

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affirmed that finding. Such a finding is sufficient to rendersubsequent walk time compensable. Simply put, a brightline rule that the first principal activity starts the work daystill requires the activity that starts the day to be a princi-pal activity.

CONCLUSIONFor the forgoing reasons, amici curiae NELA, LAS-ELC,

and NELP urge the Court to reverse the judgment below inTum. The Court should reaffirm the Portal-to-Portal Act’sdefinition of the workday in terms of the first principalactivity rule, and should reject the Tum rule permittingemployers to carve up the workday by starting, stopping,and restarting the time clock. Specifically, the Court shouldhold (1) that time employees must spend walking to andfrom stations where safety equipment is distributed iscompensable, and (2) that employees have a right tocompensation for time they must spend waiting at requiredsafety equipment distribution stations.

Respectfully submitted,

SANDRA THOUROT KRIDER, ESQ.Counsel of Record

J. DEREK BRAZIEL, ESQ.EDWARDS & GEORGE, LLP1000 Louisiana, Suite 1300Houston, Texas 77002(713) 339-3233

MARISSA M. TIRONA, ESQ.NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION44 Montgomery StreetSuite 2080

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San Francisco, CA 94104(415) 296-7629

PATRICIA A. SHIU, ESQ.MICHAEL T. GAITLEY, ESQ.LEGAL AID SOCIETY—

EMPLOYMENT LAW CENTER600 Harrison St., Suite 120San Francisco, CA 94107(415) 864-8848

CATHERINE K. RUCKLESHAUS, ESQ.NATIONAL EMPLOYMENT

LAW PROJECT55 John St., Seventh FloorNew York, NY 10038(212) 285-3025

DAVID BORGEN, ESQ.STUART C. NAIFEH, ESQ.GOLDSTEIN, DEMCHAK, BALLER,

BORGEN & DARDARIAN300 Lakeside Drive, Suite 1000Oakland, CA 94612(510) 763-9800

Dated: May 11, 2005