Assembly-line workers and others who have to make stops in the factory or laboratory for equipment or special clothing for their jobs may be well on the way to getting paid for the time it takes to walk between equipment and work stations. That, at least, was the first impression that the US Supreme Court gave as it opened its new term Oct. 3 by hearing a key pair of cases about how to calculate the length of a workday for wages and hours under federal law.
 
An attorney for management, saying his clients fear billions of dollars in added liability for worker pay, ran into a highly skeptical array of Justices - including the new Chief Justice, John G. Roberts, Jr., hearing his first case within minutes after taking the bench.

Will the Roberts Court Overturn a Longstanding Precedent in Labor Law?
Over and over again, the members of the court suggested that a 1956 court ruling, Steiner v. Marshall, essentially settled the dispute about pay for walking time between tasks at work. "The problem with your argument is Steiner," Justice Anthony M. Kennedy, told that lawyer, Carter G. Phillips with Sidley Austin Brown & Wood LLP in Washington, DC. Other members of the court suggested that Phillips could win only if the Steiner decision were overruled.

Under that half-century-old decision, any activity that is "an integral and indispensable part" of the job the worker is assigned to do must be compensated. In that case, it involved pay for the time to put on protective clothing before working on an assembly line making new batteries and showering and changing after the shift is over. The decision did not explicitly hold that walking time to those activities was paid time. Phillips suggested that the Court treat that ruling as limited solely to its "very unusual facts." But Chief Justice Roberts - who once worked a summer in a steel mill - countered that "the facts in Steiner were pretty common."

Phillips was representing a meat-processing company, IBP Inc., and a chicken-processing plant, Barber Foods, in a dispute over when a workday begins and ends, and what activity between starting and closing time must be compensated. He argued that the Portal to Portal Act, passed by Congress in 1947 to undo a prior Supreme Court ruling, makes clear that walking to and from one's actual work station is not to be treated as paid time. But, replied Justice Antonin Scalia, "we've held otherwise," referring to the 1956 precedent.
 
"Once you go down this path, defining workday by whatever anybody can say is 'integral,' you are going to have an expanded workday." That was exactly what Congress thought it was heading off, argued Phillips.

The Bush Administration Sides with Workers.
Thomas C. Goldstein with Goldstein & Howe, PC, attorney for the IBP and Barber employees, made a simpler argument. "If you show up and are given instructions [about what to wear], or you go to get tools, what follows is compensable" - including any walking or waiting within the plant.
 
Justice Scalia asked if that meant that a worker's walk from the gate to the assembly line at the start of the day was an "integral" part of work. Goldstein said no, since the Steiner decision made clear that such an initial walk was not the first principal work of the day. "When Steiner held that the principal activity included donning and doffing special clothing, it made clear that everything in-between is compensable."
 
Although the two cases, argued as one before the Court, involve the question of required pay for waiting time, as well as walking time on the job, the Justices spent little time on the waiting question, and indicated they might not feel a need to decide that this time.
 
Speaking for the federal government and for the Labor Department in particular, Assistant Solicitor General Irving L. Gornstein supported the workers' claims to pay. Workers´ on-the-job activity, he said, is compensable "only when it occurs outside the workday. When donning and doffing is integral [to the job], walking after and before is part of the workday, and is not excluded [from pay] by the Portal to Portal Act.
 
Phillips, in a brief rebuttal, again cautioned the Court about the consequences of a ruling in favor of the workers. The Labor Department position, he said, "considerably expands the workday: If you have to show up in order to put on a coat, waiting time for the coat counts; if you have to put in ear plugs, that time counts, and so does all of the walking in between. That is going to become a significant liability" for business.

The court has no specified timetable for deciding the case.

About the Author

Lyle Denniston is a veteran Supreme Court reporter, having covered the highest court for 46 years. He thus has covered one out of every four Justices ever to sit on the Court. Denniston writes for Workforce Insights on www.veritude.com.  Most recently with The Boston Globe, Denniston is now reporting on the Court for SCOTUSblog, a Web site devoted to news and information about the Court, and for the NPR Boston affiliate, WBUR.

^©2005 Veritude, LLC.  Reprinted with permission.