Publications
United States v. Olson (04-759), IBP, Inc. v. Alvarez (03-1238) and Tum v. Barber Foods, Inc. (04-66)
Greetings, Court fans!
Yesterday, the Court released its first non-per curiam decisions of the Term, and the winners of the race to publish first are (drum roll, please) . . . Justices Stevens and Breyer. Both of the today’s cases came from the Ninth Circuit, which went 1 for 2. So far, four of the six opinions issued have been from the Ninth Circuit, with three reversals (to be fair, the Ninth Circuit has the only full affirmance of the Term thus far).
Justice Breyer drafted the opinion in United States v. Olson (04-759), which holds that courts considering claims against the United States under the Federal Tort Claims Act must determine whether a private individual, not a state or municipal entity, would be held liable under similar, not identical, circumstances. The FTCA authorizes private tort suits against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” In Olson, two injured mine workers and a spouse sued the United States claiming that the negligence of federal mine inspectors contributed to a serious accident at an Arizona mine. The district court dismissed the suit, in part because it found their allegations insufficient to establish the liability of a private individual under similar circumstances. Reversing, the Ninth Circuit found that (1) where “unique governmental functions” are at issue, the FTCA waives sovereign immunity if a state or municipality would be subject to liability under state law; and (2) federal mine inspectors perform unique governmental functions because there is no adequate private sector analogy. The Court took issue with both pieces of this approach, finding it at once “too broad” and “too narrow”: too broad because the FTCA only authorizes courts to impose liability where such would exist against a private individual, not a government entity; and too narrow because the Ninth Circuit failed to look for appropriate analogies in the private context – the statute says “similar” circumstances, not “identical.”
Next, in IBP, Inc. v. Alvarez (03-1238) and Tum v. Barber Foods, Inc. (04-66), a unanimous Stevens-led Court held that, under federal wage and hour statutes, workers are entitled to pay for their “walking time” between production areas and locker rooms where they change into specialized gear, but not for “pre-donning waiting time” while they hang around waiting to pick up gear. (Stevens managed to devote twenty pages to this issue; we’ll try to be brief in case your Update reading time is non-compensable.) The case involved the 1938 Fair Labor Standards Act as amended by the 1947 Portal-to-Portal Act, both of which govern what employers must pay production workers while, amazingly, failing to define “work.” Although the PPA excludes from the FLSA any walking time between principal work areas and “preliminary and postliminary activities,” the Court had previously held that any activities that were “integral and indispensable” to principal work activities were covered – such as “donning and doffing” specialized gear in a locker room. The issue in these new cases was, accepting that walking to a locker room before work is excluded, what about walking from the locker room to and from the work station, after one has put on specialized work gear or before one has removed it? The Ninth Circuit said this walking time was compensable under the FLSA, while the First Circuit said it was excluded by the PPA.
The Court sided with the Ninth Circuit. In essence, the Court held that because donning or doffing specialized gear is “integral” to a principal work activity, it is itself a principal activity and not excluded by the PPA. So in a continuous work day, any time between the beginning of the first principal activity and the last (i.e., between donning the gear and doffing it) is not excluded by the PPA and is compensable. That settled the Ninth Circuit case, but the First Circuit case (Tum) added the bonus issue of what to do about the time workers spend waiting in the locker room to get their specialized gear before they put it on, or to get their regular clothes back. Because Tum’s employer did not require its employees to arrive at a particular time to start waiting on their gear, the record did not establish that this waiting time was “integral and indispensable” to all the donning, so this “pre-donning” time was excluded by the PPA. But because doffing the gear remained a principal activity, the FLSA still covered the pre-doffing locker room time.
That’s enough donning and doffing for now. As always, thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400.
