Jottings By An Employer's Lawyer

Tuesday, February 22, 2005

Whistling While You Wait and Walk - Should You Get Paid For It?


The Supreme Court will let us know as today they granted certiorari in two cases to decide whether employees' time spent walking from a changing room to an equipment distribution center and waiting in line for equipment is "time worked" under the Fair Labor Standards Act. Sonja Starr, has the commentary and link to the cases at SCOTUSblog. And as noted in the lead, they should be familiar with the issue since Goldstein and Howe represent the petitioners in one of the cases.

The cases will require the Court to renew its relationship with the 1947 Portal to Portal Act, the first substantive revision to the Fair Labor Standards Act, which was originally passed in 1938. Interesting that more than 50 years after the FLSA was passed, questions still exist as to what is "work" under the Act.

The two cases represent a split in the circuits, with compensation being denied in Tum v. Barber Foods (1st Cir. 2004) and awarded in IBP v. Alvarez, (9th Cir. 2003). It will be interesting to see if the 9th Circuit's usual run of luck on employment cases before the Supreme Court, which would augur for the reversal of Alvarez and upholding of Tum, holds true.

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