FLSA Employers Must Pay From Beginning to End

Alan Rupe
December 9, 2005 — 3,091 views  
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Walking is actually an Olympic sport. Sadly, it produces virtually no income for participants. However, thanks to the U.S. Supreme Court, walking recently became more lucrative. Earlier this month, the High Court held that the Fair Labor Standards Act required a prominent meatpacking company to pay employees for time spent walking to workstations after donning and doffing required protective gear. Alvarez v. IBP and Tum v. Barber Foods were decided November 8 in a single opinion by a unanimous Court and are available at IBP Inc. v. Alvarez, 126 S. Ct. 514 (2005). Those two opinions patched significant holes in the Court’s existing FLSA precedents.

Passed by Congress in 1938, the FLSA requires payment of a minimum wage and an overtime rate for hours exceeding 40 per week. Courts have struggled over the years to give meaning to this mandate. A few relevant points were well settled prior to Alvarez: (1) the Act does not require employers to compensate employees for time spent walking to their workstations; (2) employers must pay employees for time spent performing functions “integral and indispensable” to a job’s “principal function”; and (3) time spent donning and doffing protective gear necessitated by the special characteristics of the job is integral and indispensable to the job and must be compensated.

What about time employees spend walking to workstations after donning and before doffing protective gear? According to Alvarez, employees must be compensated for that time. A function “integral and indispensable” to a job’s principal function is itself a principal function. During a continuous workday, an employer must compensate the employee for any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity.

What about time employees spend waiting to don and doff protective gear? No compensation is required. Alvarez analogized such waiting time to those situations where employees must walk to their workstations after punching a time clock. The Court has previously found such preliminary activities noncompensable.

Whether or not your employees must don and doff protective gear, Alvarez announces an overarching commandment applicable to all employers: pay your nonexempt employees from whistle to whistle! The whistle blows each morning when the employee performs his or her first principal activity. It blows again when the employee stops performing his or her last principal activity. Of course, lunches and substantial breaks can be excluded.

An employee prevailing in an FLSA lawsuit can receive double his or her withheld wages, plus attorneys’ fees. To avoid liability, all companies should review their pay procedures, handbooks and policy statements to ensure compliance with the FLSA and Alvarez.

Alan Rupe

Kutak Rock LLP