Reich v. IBP, Inc.

• Decision Date: 25 October 1994
• Docket Number: 93-3205,Nos. 93-3204,s. 93-3204
• Citation: 38 F.3d 1123
• Parties: 129 Lab.Cas. P 33,171, 2 Wage & Hour Cas.2d (BNA) 641 Robert B. REICH, Secretary of the United States Department of Labor, Plaintiff-Appellant/Cross-Appellee, v. IBP, INC., Defendant-Appellee/Cross-Appellant, American Meat Institute and National Broiler Council, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1123

38 F.3d 1123

129 Lab.Cas. P 33,171, 2 Wage & Hour Cas.2d

(BNA) 641

Robert B. REICH, Secretary of the United States Department

of Labor, Plaintiff-Appellant/Cross-Appellee, v. IBP, INC., Defendant-Appellee/Cross-Appellant, American Meat Institute and National Broiler Council, Amici Curiae.

Nos. 93-3204, 93-3205.

United States Court of Appeals, Tenth Circuit.

Oct. 25, 1994.

Paul L. Frieden, Atty. (Thomas S. Williamson, Jr., Sol. of Labor, Monica Gallagher, Associate Sol., and William J. Stone, Counsel for Appellate Litigation, with him, on the briefs), U.S. Dept. of Labor, Washington, DC, for plaintiff-appellant/cross-appellee.

Jack L. Whitacre (David L. Wing with him, on the brief) of Spencer Fane Britt & Browne, Kansas City, MO, for defendant-appellee/cross-appellant.

Gary Jay Kushner and Peter W. Tredick of Hogan & Hartson, Washington, DC, on the brief, for amici curiae.

Before MOORE and McKAY, Circuit Judges, and PARKER, ^* District Judge.

McKAY, Circuit Judge.

This case involves an action by the Secretary of Labor seeking to enforce the overtime and recordkeeping provisions under Sec. 17 of the Fair Labor Standards Act of 1938 (FLSA), codified as amended at 29 U.S.C. Sec. 201 et seq. (1988), against Iowa Beef Packers Inc. (IBP), a company engaged in the meat processing industry.

Between April 1, 1986 and August 1, 1988, IBP was engaged in the slaughter, processing, and packing of beef and pork in numerous locations throughout the Midwest. Because of the nature of the work, company regulations, and federal regulations issued by OSHA and the USDA Food Safety and Inspection Service, employees were required to wear certain garments and safety equipment on the job. Regulations or other practical considerations necessitated that virtually all safety equipment and garments be kept on the premises of the IBP plant, and the workers put the clothing and equipment on in the morning and left it behind at the end of the day.

According to the district court's findings of fact, Reich v. IBP, Inc., 820 F.Supp. 1315 (D.Kan.1993), there were two general categories of "hourly production workers: 1) those who used knives or other meat cutting utensils in the performance of their jobs; and 2) those who did not use knives or other cutting utensils." 820 F.Supp. at 1319. The first category of workers required special safety equipment ("personal protective gear") consisting of some combination of: "a mesh apron, a plastic belly guard, mesh sleeves or plastic arm guards, wrist wraps, mesh gloves, rubber gloves, 'polar sleeves,' rubber boots, a chain belt, a weight belt, a scabbard, and shin guards." Id. The second category of employees wore hard hats, earplugs, safety footwear, and safety eyewear. In addition, for sanitary reasons all employees wore clean white outergarments while working, which were usually left overnight to be laundered. Thus, the employees of IBP spent some nontrivial amount of time each day picking up, etc.

The Secretary contends that the time and effort invested by employees of IBP in picking up, putting on, taking off, cleaning, and dropping off or storing the various safety and sanitary equipment before and after their regular work shifts constitute compensable working time within the meaning of the FLSA. IBP claims that these tasks instead fall within the rubric of noncompensable preliminary and postliminary activities as defined by the Portal-to-Portal Act of 1947, 29 U.S.C. Sec. 254 (the "Portal Act") (1988). The district court agreed partially with the Secretary and partially with IBP, and both parties appealed.

A further issue is whether the trial court's determination that some of the time at issue was "hours worked" under the FLSA requires retroactive application in the form of a restitutionary injunction. IBP has presented what the trial court characterized as a "compelling argument" that such an injunction should not be granted. See 820 F.Supp. at 1328. Nevertheless, the trial court initially granted the injunction; subsequently the court vacated the injunction and certified for appeal the question of whether retroactive application is required.

We agree with the district court's determination on the issues of compensable working time and on the initial grant of the restitutionary injunction for substantially the reasons set forth by the district court. However, some elaboration of one issue is necessary.

The trial court found that, for the knife-wielding workers,

[t]he donning of personal protective gear unique to the production job performed by the employee was compensable ... because the wearing of this personal protective equipment was so closely related to the performance of the principal activity they were hired to perform that it became an integral and indispensable part of that principal activity.

Id. at 1326. In contrast, for the non-knife-using workers, "the wearing of standard protective gear which was not uniquely required by the dangers of the various production jobs being performed was not compensable." Id. at 1326-27 n. 16. The reasons given for not compensating the employees for this category of safety gear (hard hats, earplugs, safety footwear, and safety eyewear) were that "[s]uch items are uniformly required throughout many industries" and that such "items were not so uniquely and closely related to the dangers inherent in meat production to make the wearing them [sic] an integral and indispensable part of the meat production workers' jobs." Id.

Although we agree with the district court's conclusion with respect to compensability, we do so for slightly different reasons. We understand the court's reluctance to find that these workers should be compensated for putting on a hard hat, safety glasses, earplugs, and safety shoes. Such a holding would open the door to lawsuits from every industry where such equipment is used, from laboratories to construction sites. However, the fact that such equipment is well-suited to many work environments does not make it any less integral or indispensable to these particular workers than the more specialized gear. In fact, the same reasons supporting the finding of indispensability and integrality for the unique equipment (i.e. company, OSHA, and Department of Agriculture regulations requiring such items and the health, safety, and cost benefits to the company of the employees wearing the items) apply with equal force to the "standard" equipment.

A better explanation for the non-compensability of the donning and doffing of the latter items is that it is not work within the meaning of the FLSA. Work is "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944). While the use of the standard safety equipment may have met the second prong of this test, it fails the first.

The placement of a pair of safety glasses, a pair of earplugs and a hard hat into or onto the appropriate location on the head takes all of a few seconds and requires little or no concentration. Such items can easily be carried or worn to and from work and can be placed, removed, or replaced while on the move or while one's attention is focused on other things. Similarly, safety shoes can be worn to and from work and require little or no additional effort to put on as compared to most other shoes. Thus, although essential to the job, and required by the employer, any time spent on these items is not work. ¹

On the other hand, the donning, doffing, and cleaning of the special protective gear used by the knife-workers at the IBP plants was properly found to be compensable. These items are heavy and cumbersome, and it requires physical exertion, time, and a modicum of concentration to put them on securely and properly. These actions differ in kind, not simply degree, from the mere act of dressing. Thus, in addition to being essential to their work, putting on the special protective equipment is work itself, and is compensable. Although putting on just one or two items of extra gear could be de minimis, the necessity to combine several items coupled with the need to regularly and thoroughly clean the equipment creates measurable additional working time. In fact, previous decisions indicate that as little as ten minutes of working time goes beyond the level of de minimis and...