QUESTIONS THAT REMAIN OPEN AFTER IBP V . AI; VAREZ
BY
Ellen C. Kearns’
1.
The De Minimis Issue
The most significant issue not addressed by the Supreme Court decision in DIP v.
AZvarez2 concerns the concept of “de minimis” time.
a.
Background
The Supreme Court, in Anderson v. Mt. CZemens Pottery Co., 328 U.S. 680 (1946),
described the de minimis 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 4 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.
Ellen C. Kearns 1 5 a member of the Boston Office of Foley & Lardner, Li i’. She is the
Editor -in-Chief of the BNA treatise, The Fair Labor Standards Act, a member of thc Board of
Editors for its Annual Supplcment, and a Chapter Editor (Massachusetts) of the BN,I Treatise,
Wage and Hour Laws, A St<ite-by-StateSurvey. She writes and lectures frequently o n wage and
hour matters.
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Following the Supreme Court decision in Mt. Clemens, the DOL addressed the issue of
de minimis time in 29 C. 1; .R., Section 785.47. That Section now provides:
In recording working time under the Act, insubstantial or
insignificant periods of time beyond the scheduled working hours,
which cannot as a practical administrative matter be precisely
recorded for payroll purposes, may be disregarded. The courts
have held that such trifles are de minimis. (Anderson v. Mt.
Clemems Pottery Co., 328 U.S. 680 (1946)) This rule applies only
where there are uncertain arid indefinite periods of time involved
of a few seconds or minutes duration, and where the failure to
count such time is due to considerationsjustified by industrial
realities. An employer may not arbitrarily fail to count as hours
worked any part, however small, of the employer’s fixed or regular
working time or practically ascertainableperiod of time he is
regularly required to spend on duties assigned to him. See Glenn
L. Martin Nebraska Co. v. Caulkin, 197 F. 2d 891,987 (C.A. 8,
1952), cert denied, 344 U S . 866 (1952), rehearing denied, 344
U.S. 888 (1952), holding that working time amounting to $1 of
additional compensation a week is “not a trivial matter to a
workingman” and was not de minimis; Addison v. Huron
Stevecluring Curp., 204 F. 2d 88,95 (C.A. 2, 1953), cert denied
346 U S . 877, holding that “To disregard workweeks for which
less than a dollar is due will produce capricious and unfair results.”
Hawkins v. E.I. du Pont de Nemours & Co., 12 W. H. Cases 448,
27 Labor Cases, para. 69,094 (E. D. Va. 1955), holding that ten
minutes a day is not de minimis.
Despite the fact that the DOL regulations approved of the holding in Hawkins v. E.I. du Pont de
Nemours & Co., supra, a US Claims Court concluded that ten minutes a day was de minimis. In a case
under the Contract Work Hours Safety Standards Act (CW HSSA), International Business Investments
Inc. v. United States. 11 C1. Ct. 588 ( 1987) the court concluded that “the case law seems to establish that
a period of 10 minutes or less per day devoted by an employee to necessary pre-and post-shift work is de
minimis.” The de mirzimis rule under the CWHASSA is the same as the rule under the FLSA
In Lindow v. United States, 7-38 F.2d 1057 (9th Cir. 1984) the Ninth Circuit stated that
”[aln important factvr in determining whether a claim is de minimis is the amount of daily time
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spent on the additional work. There is no precise amount of time that may be denied
compensation as de minimis. No rigid rule can be applied with mathematical certainty." L a t
1062. Lindow noted that "[m]ost courts have found daily periods of approximately 10 minutes
de minimis even though otherwise compensable.'' &(citing cases). Lindow then concluded that
the approximately 7 to 8 minutes spent each day before the employees' shift reading the log book
and exchanging information was de minimis because it was irregular and difficult to monitor.
Significantly, however, the Ninth Circuit stated that a reviewing court must also look at the "the
size of the aggregate claim" as a factor in determining de minimis. 738 F.2d at 1063.
The Ninth Circuit in Lindow did not state definitively what it
meant by aggregating time. It did state that "[aln 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 (postLindow case where court stated that "[ilt is also appropriate to
consider an aggregate based on the total number of workers").
Ten years after the Lindow decision, the Tenth Circuit addressed the de minimis issue in
Reich v. IBP, Inc. , 38 F.3d 1123, 1126 (10th Cir. 1994). It found that "as little as ten minutes of
working time goes beyond the level of de minimis and triggers the FLSA." Id at 1126. It held
Supplementary Brief for the Secretary of Labor as Amicus Curiae Supporting the Petition For
Panel Rehearing and Petition For Rehearing En Banc, First Circuit Court of Appeals, Abdela
Tum, et al. v. Barber Foods,
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that the time spent by knife-using employees at a meat packing company donning, doffing, and
cleaning of “unique” protective gear constituted an integral part of employees’ principal
activities, and had to be compensated while time spent donning, removing, and gathering
standard safety equipment and outer garments was not compensable.
The Tenth Circuit had the opportunity to expound on its ruling in Reich v. Monfort, 144
F.3d 1329, 1333 (10th Cir. 1998). In Monfort, the Tenth Circuit explicitly stated that it was
proper to apply the de minimis rule in relation to the aggregate amount of time worked by all
employees involved in the litigation. On this basis, the court held that preliminary and
postliminary activities amounting to 10 minutes per day for each meat processing company
employee, including putting on and taking off safety gear was not de minimis. The facts of that
case were
From the period May, 1989, to May, 1993, between 1,537 and
1,717 employees worked in the slaughter and fabrication
departments and performed these activities on a daily basis at the
Greeley, Colorado plant. From May, 1993, to the present time, the
number of employees in each department has not significantly
changed.
Both the trail court and the appellate court conceded that the time would be
administratively difficult to record. However, the appellate court held that the total amount of
time involved, both on a per employee basis (10 minutes per day over a 3 year period) and on an
aggregate basis for all the employees as a group (in excess of 1500 employees) would properly
be considered substantial. The appellate court also decided that the regularity of the activities
invcllved weighed against a de minimis finding. It thus affirmed the district court’s decision that
the time was compensable. The Tenth Circuit said that it was a “close call,”. but that it was
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proper to apply the de minimis rule in relation to the aggregate amount of time worked by all
employees involved in the litigation. The back pay award was over $1.5 million plus interest
b.
Circuit Court Decisions in Alvarez and Turn.
In Alvarez v. IBP, Inc., 339 F. 3d 894 (9th Cir. 2003) the Ninth Circuit distinguished
between what it called “unique” protective gear [chain link metal aprons, vests, plexiglass
armguards, and special gloves] and “non-unique” protective gear [hard hats, ear plugs, safety
glasses. boots and hairnets.]. It held that donning and doffing “unique” protective gear was
compensable but that the time employees spent donning and doffing non-unique protective gear,
while integral and indispensable to the employees’ principal activities, was not compensable
because the time was de minimis “as a matter of law.’’Id.at 903-04.
In Turn v. Barber Foods, 331 F. 3d I (lStCir. 2003) a jury found that the time
employees spent “donning and doffing” protective clothing and equipment was “de minimis.” As
a result, the jury did not require the employer to compensate employees for the time spent
donning and doffing.
On appeal, the First Circuit Court of Appeals asked the Solicitor’s Office to submit an
amicus brief, in part to address the issues raised by the Ninth Circuit’s Alvarez decision.. In its
Supplementary Brief for the Secretary of Labor as Amicus Curiae Supporting the Petition For
Panel Rehearing and Petition For Rehearing En Banc, the Secretary wrote:
Lindow does not support the court’s conclusion in AZvarez on this
point. Rather, Lindow specifically sets out criteria for determining
u,hether aggregate time during the “workday” is de minimis, which
necessarily calls for a factual inquiry. The court in AEvnrez thus
misapprehended its own precedent, and thereby misapplied the
concept of de minimis to discrete activities as a matter of‘law. This,
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in turn, allowed the Ninth Circuit to treat as noncompensable “the
de minimis time associated with the donning and doffing of nonunique protective gear.” Alvarez, 339 F.3d at 904. The court was in
error on this point.
IBP v. Alvarez, 126 S. Ct. 514 (2005)
c.
In IBP v. Alvarez, 126 S . Ct. 514 (2005), the Supreme Court held that since donning
and doffing were “principal activities,” employers were required to pay employees for walking
from and to the clothes changing area to the place of work. The Supreme Court did not address
or resolve the question as to whether the plaintiffs would now be permitted to aggregate the
clothes changing time with the walking time making the total time compensable, if the total time
spent was not de minimis.
Many thought that the First Circuit would address this “de minimis” question following
the Supreme Court’s remand of Tum v. Barber Foods to the First Circuit. However, to date, the
First Circuit has issued no ruling on this matter.
However, on May 3 1,2006, the DOL issued a Wage and Hour Advisory Memorandum
The Memorandum was directed to Regional Administrators and
(WHAM) on IBP v Alvare~..~
District Directors of the Department of Labor (DOL). The Memorandum “advises staff of the
state of the law after the Supreme Court’s decision in IBP v. Alvarez, 125 S . Ct. 514 (2005)
(together with Barber Foods v.
Wage and Hour Advisory Memorandum No. 2006-2.
Id.
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The first issue addressed by the WHAM was the Ninth Circuit’s decision in IBP v.
Alvarez with respect to the donning and doffing of “nonunique” gear such as hairnets, goggles,
hardhats and smocks:
As the government’s Supreme Court amicus brief in Alvarez states,
the Ninth Circuit erred in its application of the de minimis rule.
The de minimis rules apples to the aggregate amount of time for
which an employee seeks compensation , not separately to each
discrete activity, and particularly not to certain activities “as a
mater of law.” The Supreme Court’s continuous workday rationale
renders the Ninth Circuit’s ‘de minimis as a matter of law’
discussion untenable.
The DOL W A M did point out, however, that “donning and doffing of required gear is within
the continuous workday only when the employer or the nature of the job mandates that it take
place on the employer’s
premise^."^ If employees have the option to change into required gear at
home, changing into that gear is not a principal activity.
Next the WHAM turned to the concept of de minimis. It acknowledged that the Supreme
Court in IBP v. Alvarez did not rule on the scope or meaning of de minimis activities nor on the
effect of de minimis activities on the compensability of donning, doffing, walking and waiting
time. It did point out, however, that the Supreme Court in reversing the First Circuit’s decision
in Turn and remanding that case for further proceedings, concluded: “during a continuous
workday, any walking time that occurs afler the beginning of the employee’s first principal
activity and before the end of the employee’s last principal activity is” compensable.
Thus, the W A M concluded that the Supreme Court’s decision in IBP v. Alvarez clearly
stood “for the proposition that where the aggregate time spent donning, walking, waiting and
doffing exceeds the de minimis standard, it is compensable. Any other conclusion would be
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Id at 3.
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inconsistent with the continuous workday rule. It would also appear to render the Supreme
Court’s holding in Turn an advisory opinion, and leave the Court’s remand of the case to the First
Circuit devoid of any apparent p ~ r p o s e . ” ~
2.
Commuting Time
Another issue that was not directly addressed by the Supreme Court concerns the
application of the continuous work day rule to commuting activities. For example, if an
employee is required to log-on to the Company’s e-mail system from his or her home, and while
logged on, performs some preliminary matters before commuting to work, does the commuting
time become “compensable”? In its brief to the Supreme Court, the Department of Labor took
the position that the performance of “integral and indispensable “ activities at home would not
render the subsequent commute compensable because the activities would not be subject to
employer control and thus would not qualify as “work.” But, could it be argued that the
employer does have control over e-mail communications because the computer can determine
the amount of time on the computer and what the communication was about?
In Dooley v. Liberty Mutual Life Insurance Company, 307 F. Supp. 2d 234 (D. Mass.
2004) a federal district court in Massachusetts held that auto damage appraisers who performed
work at home before traveling to their first appointment should be Compensated for their travel
time because their travel time was all part of a day’s work.
As telecommuting becomes more prevalent, this issue will bubble up for further
resolution.
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Id at 4.
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3.
The Section 3(0) Issue
Section 3(0) of the FLSA provides: “In determining for the purposes of sections 6
[minimum wage] and 7 [overtime requirements] the hours for which an employer is employed,
there shall be excluded any time spent in changing clothes or washing at the beginning or end of
each workday which was excluded from measured working time during the week involved by the
express terms of or by custom or practice under a bona fide collective bargaining agreement
applicable to the particular employee.”
In June 2002, the Wage-Hour Administrator issued an Opinion Letter in which, contrary
to a 1997 opinion letter, the Administrator concluded that the time spent by meatpacking
employees donning and doffing protective equipment represents the sort of clothes changing that
Section 3(0) of the FLSA was meant to address. The 2002 opinion letter appears to say that
meatpacking employers and unions are free to agree to exclude some or all clothes changing
time, but not the time spent by employees washing their protective equipment, from the
employees’ compensable time under the FLSA.
The Supreme Court in the Alvarez decision did not address either Section 3(0) or the
Wage-Hour Administrator’s 2002 opinion letter. Therefore, whether in fact Section 3(0) permits
employers to exclude donning and doffing time from the compensable work day under collective
bargaining agreements, as the 2002 opinion letter appears to permit, remains undecided
The Supreme Court’s refusal to grant review of the Section 3(0) issue in Alvarez does not
mean that the Supreme Court approves of the Ninth Circuit’s rejection of the 2002 opinion letter.
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Rather, it simply means that the Ninth Circuit’s ruling remains standing, at least for the time
being, in that Circuit. However, the viability of the 2002 opinion letter as an interpretation of
Section 3(0) is an open question outside the Ninth Circuit.
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