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Lawyers for Tyson Foods are challenging a U.S. appeals court ruling that compensable work includes the putting on and taking off of protective work clothing and are calling on the Supreme Court to resolve what the company claims to be a conflict in the courts of appeal.

Monday’s petition for a writ of certiorari was filed with the Supreme Court by attorneys representing poultry processor Tyson Foods Inc., which faces more than 30 wage-and-hour lawsuits on behalf of tens of thousands of factory worker.

The original suit was brought by employees against Tyson in federal court in Pennsylvania, seeking back pay and other relief for time that they spent putting on, taking off, and washing certain sanitary and protective clothing before and after their shifts and at breaks. The Fair Labor Standards Act (”FLSA”) requires employers to compensate employees for overtime work (work above 40 hours per week) at one-and-a-half times their normal rate of pay. Tyson seeks review of the issue of whether the activities at issue constituted “work.”

The Court has already held that the time spent walking between changing and production areas is compensable work under the FLSA in 2005 opinion - IBP, Inc. v. Alvarez. We posted about that decision here. The language of the unanimous decision in the Alvarez case would lead me to believe that the Court would decide against Tyson here. However, the membership of the Court has changed somewhat since Alvarez so perhaps this gives Tyson the hope that the Court might swing the back the other way on this issue.

Under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (”FLSA”), as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262 (”Portal Act”), an employee must be compensated for the time their employer requires them to spend donning and doffing protective gear. In the combined oral argument for Tum v. Barber Foods, Inc. and IBP, Inc. v. Alvarez, the Supreme Court considered an important related question—whether an employee is also entitled to compensation for time spent waiting at stations where required safety and health equipment is distributed, donned, and doffed, and traveling to and from these stations to work sites at the beginning and end of each workday. This week the Court gave us the answer. In a nutshell, the Supreme Court’s decision in these consolidated cases is that the donning of essential clothing and equipment that is integral to the performance of an employee’s job marks the beginning of the employee’s compensable workday. Once an employee dons protective clothing or equipment, the workday has begun and continues to run until such time as the employee actually doffs that protective gear or clothing at the end of the workday. Of course the converse is also true: any time spent by employees walking to the locker room prior to donning such equipment/clothing or waiting in line to receive same is generally not compensable under the FLSA.Here is the Court’s opinion.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer