OPINION OF THE COURT IBP, INC. V. ALVAREZ 546 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 03-1238 AND 04-66 IBP, INC., PETITIONER

															03–1238 v. GABRIEL ALVAREZ, individually and on behalf of
all others similarly situated, et al. on writ of certiorari to the united states
court of appeals for the ninth circuit ABDELA TUM, et al. , PETITIONERS

															04–66 v. BARBER FOODS, INC., dba BARBER FOODS

															on writ of certiorari to the united states court of
appeals for the first circuit

															[November 8, 2005]

															   Justice Stevens delivered the
opinion of the Court.

															   These consolidated cases raise
questions concerning the coverage of the Fair Labor Standards Act
of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947,
with respect to activities of employees who must don protective
clothing on the employer’s premises before they engage in the
productive labor for which they are primarily hired. The principal
question, which is presented in both cases, is whether the time
employees spend walking between the changing area and the
production area is compensable under the FLSA. The second question,
which is presented only in No. 04–66, is whether the time employees
spend waiting to put on the protective gear is compensable under
the statute. In No. 03–1238, the Court of Appeals for the Ninth
Circuit answered “yes” to the first question, 339 F. 3d 894
(2003); in No. 04–66, the Court of Appeals for the First Circuit
answered “no” to both questions, 360 F. 3d 274, 281 (2004). We
granted certiorari to resolve the conflict. 543 U. S. ___
(2005).

															I

															   As enacted in 1938, the FLSA, 29
U. S. C. §201 et seq. , required employers engaged in
the production of goods for commerce to pay their employees a
minimum wage of “not less than 25 cents an hour,” §6(a)(1), 52
Stat. 1062, and prohibited the employment of any person for
workweeks in excess of 40 hours after the second year following the
legislation “unless such employee receives compensation for his
employment in excess of [40] hours … at a rate not less than one
and one-half times the regular rate at which he is employed,” id. , §7(a)(3), at 1063. Neither “work” nor “workweek” is
defined in the statute.[ Footnote
1 ]

															   Our early cases defined those
terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944), we
held that time spent traveling from iron ore mine portals to
underground working areas was compensable; relying on the remedial
purposes of the statute and Webster’s Dictionary, we described
“work or employment” as “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
and his business.” Id., at 598; see id., at 598,
n. 11. The same year, in Armour & Co. v. Wantock, 323 U. S. 126 (1944), we
clarified that “exertion” was not in fact necessary for an activity
to constitute “work” under the FLSA. We pointed out that “an
employer, if he chooses, may hire a man to do nothing, or to do
nothing but wait for something to happen.” Id. , at 133.
Two years later, in Anderson v. Mt. Clemens Pottery
Co., 328 U. S. 680 (1946), we defined “the
statutory workweek” to “include all time during which an employee
is necessarily required to be on the employer’s premises, on duty
or at a prescribed workplace.” Id. , at 690–691.
Accordingly, we held that the time necessarily spent by employees
walking from time clocks near the factory entrance gate to their
workstations must be treated as part of the workweek. Id. ,
at 691–692.

															   The year after our decision in Anderson , Congress passed the Portal-to-Portal Act,
amending certain provisions of the FLSA. Based on findings that
judicial interpretations of the FLSA had superseded
“long-established customs, practices, and contracts between
employers and employees, thereby creating wholly unexpected
liabilities, immense in amount and retroactive in operation,” 61
Stat. 84, it responded with two statutory remedies, the first
relating to “existing claims,” id. , at 85–86, and the
second to “future claims,” id., at 87–88. Both remedies
distinguish between working time that is compensable pursuant to
contract or custom and practice, on the one hand, and time that was
found compensable under this Court’s expansive reading of the FLSA,
on the other. Like the original FLSA, however, the Portal-to-Portal
Act omits any definition of the term “work.”

															   With respect to existing claims, the
Portal-to-Portal Act provided that employers would not incur
liability on account of their failure to pay minimum wages or
overtime compensation for any activity that was not compensable by
either an express contract or an established custom or
practice.[ Footnote 2 ] With
respect to “future claims,” the Act preserved potential liability
for working time not made compensable by contract or custom but
narrowed the coverage of the FLSA by excepting two activities that
had been treated as compensable under our cases: walking on the
employer’s premises to and from the actual place of performance of
the principal activity of the employee, and activities that are
“preliminary or postliminary” to that principal activity.

															   Specifically, Part III of the Portal-to-Portal
Act, entitled “future claims,” provides in relevant part:

															   “Sec. 4. Relief from Certain
Future Claims Under the Fair Labor Standards Act of
1938 … —

															   “(a) Except as provided in subsection (b)
[which covers work compensable by contract or custom], no employer
shall be subject to any liability or punishment under the Fair
Labor Standards Act of 1938, as amended, … on account of the
failure of such employer to pay an employee minimum wages, or to
pay an employee overtime compensation, for or on account of any of
the following activities of such employee engaged in on or after
the date of the enactment of this Act—

															   “(1) walking, riding, or traveling to and from
the actual place of performance of the principal activity or
activities which such employee is employed to perform, and

															   “(2) activities which are preliminary to or
postliminary to said principal activity or activities, which occur
either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or activities.”
61 Stat. 86–87 (codified at 29 U. S. C. §254(a)).

															   Other than its express exceptions
for travel to and from the location of the employee’s “principal
activity,” and for activities that are preliminary or postliminary
to that principal activity, the Portal-to-Portal Act does not
purport to change this Court’s earlier descriptions of the terms
“work” and “workweek,” or to define the term “workday.” A
regulation promulgated by the Secretary of Labor shortly after its
enactment concluded that the statute had no effect on the
computation of hours that are worked “within” the workday. That
regulation states: “[T]o the extent that activities engaged in by
an employee occur after the employee commences to perform the first
principal activity on a particular workday and before he ceases the
performance of the last principal activity on a particular workday,
the provisions of [§4] have no application” 29 CFR §790.6(a)
(2005).[ Footnote 3 ] Similarly,
consistent with our prior decisions interpreting the FLSA, the
Department of Labor has adopted the continuous workday rule, which
means that the “workday” is generally defined as “the period
between the commencement and completion on the same workday of an
employee’s principal activity or activities.” §790.6(b). These
regulations have remained in effect since 1947, see 12 Fed. Reg.
7658 (1947), and no party disputes the validity of the continuous
workday rule.

															   In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we
were confronted with the question whether workers in a battery
plant had a statutory right to compensation for the “time incident
to changing clothes at the beginning of the shift and showering at
the end, where they must make extensive use of dangerously caustic
and toxic materials, and are compelled by circumstances, including
vital considerations of health and hygiene, to change clothes and
to shower in facilities which state law requires their employers to
provide… .” Steiner v. Mitchell, 350 U. S. 247 , 248
(1956). After distinguishing “changing clothes and showering under
normal conditions” and stressing the important health and safety
risks associated with the production of batteries, id. , at
249, the Court endorsed the Court of Appeals’ conclusion that these
activities were compensable under the
FLSA. In
reaching this result, we specifically agreed with the Court of
Appeals that “the term ‘principal activity or activities’ in
Section 4 [of the Portal-to-Portal Act] embraces all activities
which are an ‘integral and indispensable part of the principal
activities,’ and that the activities in question fall within this
category.” Id. , at 252–253. Thus, under Steiner ,
activities, such as the donning and doffing of specialized
protective gear, that are “performed either before or after the
regular work shift, on or off the production line, are compensable
under the portal-to-portal provisions of the Fair Labor Standards
Act if those activities are an integral and indispensable part of
the principal activities for which covered workmen are employed and
are not specifically excluded by Section 4(a)(1).” Id., at
256. The
principal question presented by these consolidated cases—both of
which involve required protective gear that the courts below found
integral and indispensable to the employees’ work—is whether
postdonning and predoffing walking time is specifically excluded by
§4(a)(1). We conclude that it is not. II Petitioner in No. 03–1238, IBP, Inc. (IBP),
is a large producer of fresh beef, pork, and related products. At
its plant in Pasco, Washington, it employs approximately 178
workers in 113 job classifications in the slaughter division and
800 line workers in 145 job classifications in the processing
division. All production workers in both divisions must wear outer
garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons,
leggings, and boots. Many of them, particularly those who use
knives, must also wear a variety of protective equipment for their
hands, arms, torsos, and legs; this gear includes chain link metal
aprons, vests, plexiglass armguards, and special gloves. IBP
requires its employees to store their equipment and tools in
company locker rooms, where most of them don their protective
gear. Production workers’ pay is based on the time
spent cutting and bagging meat. Pay begins with the first piece of
meat and ends with the last piece of meat. Since 1998, however, IBP
has also paid for four minutes of clothes- changing time.[ Footnote 4 ] In 1999, respondents, IBP
employees, filed this class action to recover compensation for
preproduction and postproduction work, including the time spent
donning and doffing protective gear and walking between the locker
rooms and the production floor before and after their assigned
shifts. After a
lengthy bench trial, the District Court for the Eastern District of
Washington held that donning and doffing of protective gear that
was unique to the jobs at issue were compensable under the FLSA
because they were integral and indispensable to the work of the
employees who wore such equipment. Moreover, consistent with the
continuous workday rule, the District Court concluded that, for
those employees required to don and doff unique protective gear,
the walking time between the locker room and the production floor
was also compensable because it occurs during the workday.[ Footnote 5 ] The court did not, however,
allow any recovery for ordinary clothes changing and washing, or
for the “donning and doffing of hard hat[s], ear plugs, safety
glasses, boots [or] hairnet[s].” App. to Pet. for Cert. in No.
03–1238, p. 65a. The
District Court proceeded to apply these legal conclusions in making
detailed factual findings with regard to the different groups of
employees. For example, the District Court found that, under its
view of what was covered by the FLSA, processing division knife
users were entitled to compensation for between 12 and 14 minutes
of preproduction and postproduction work, including 3.3 to 4.4
minutes of walking time. The Court
of Appeals agreed with the District Court’s ultimate conclusions on
these issues, but in part for different reasons. 339 F. 3d 894
(CA9 2003). After noting that the question whether activities
“ ‘are an integral and indispensable part of the principal
activities’ ” within the meaning of Steiner, is
“context specific,” 339 F. 3d, at 902, the Court of Appeals
endorsed the distinction between the burdensome donning and doffing
of elaborate protective gear, on the one hand, and the time spent
donning and doffing nonunique gear such as hardhats and safety
goggles, on the other. It did so not because donning and doffing
nonunique gear are categorically excluded from being “principal
activities” as defined by the Portal-to-Portal Act, but rather
because, in the context of this case, the time employees spent
donning and doffing nonunique protective gear was “ ‘ de
minimis as a matter of law.’ ” Id. , at
904. IBP does
not challenge the holding below that, in light of Steiner ,
the donning and doffing of unique protective gear are “principal
activities” under §4 of the Portal-to-Portal Act. Moreover, IBP has
not asked us to overrule Steiner . Considerations of stare decisis are particularly forceful in the area of
statutory construction, especially when a unanimous interpretation
of a statute has been accepted as settled law for several decades.
Thus, the only question for us to decide is whether the Court of
Appeals correctly rejected IBP’s contention that the walking
between the locker rooms and the production areas is excluded from
FLSA coverage by §4(a)(1) of the Portal-to-Portal
Act. IBP argues
that the text of §4(a)(1), the history and purpose of its
enactment, and the Department of Labor’s interpretive guidance
compel the conclusion that the Portal-to-Portal Act excludes this
walking time from the scope of the FLSA. We find each of these
arguments unpersuasive. Text IBP correctly points out that our
decision in Steiner held only that the donning and doffing of
protective gear in that case were activities “integral and
indispensable” to the workers’ principal activity of making
batteries. 350 U. S., at 256. In IBP’s view, a category of
“integral and indispensable” activities that may be compensable
because they are not merely preliminary or postliminary within the
meaning of §4(a)(2) is not necessarily coextensive with the actual
“principal activities” which the employee “is employed to perform”
within the meaning of §4(a)(1). In other words, IBP argues that,
even though the court below concluded that donning and doffing of
unique protective gear are “integral and indispensable” to the
employees’ principal activity, this means only that the donning and
doffing of such gear are themselves covered by the FLSA. According
to IBP, the donning is not a “principal activity” that
starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not
compensable. In effect, IBP asks us to create a third
category of activities—those that are “integral and indispensable”
to a “principal activity” and thus not excluded from coverage by
§4(a)(2), but that are not themselves “principal activities” as
that term is defined by
§4(a)(1). IBP’s submission is foreclosed
by Steiner . As noted above, in Steiner , we made
it clear that §4 of the Portal-to-Portal Act does not remove
activities which are “ ‘integral and indispensable’ ” to
“ ‘principal activities’ ” from FLSA coverage precisely
because such activities are themselves “principal activities.” Id., at 253. While Steiner specifically addressed
the proper interpretation of the term “principal activity or
activities” in §4(a)(2), there is no plausible argument that these
terms mean something different in §4(a)(2) than they do in
§4(a)(1).[ Footnote 6 ] This is
not only because of the normal rule of statutory interpretation
that identical words used in different parts of the same statute
are generally presumed to have the same meaning. E.g. , Sullivan v. Stroop, 496 U. S. 478 , 484
(1990). It is also because §4(a)(2) refers to
“ said principal activity or activities.” 61 Stat. 87
(emphasis added). The “said” is an explicit reference to the use of
the identical term in
§4(a)(1). Indeed, IBP has not offered any
support for the unlikely proposition that Congress intended to
create an intermediate category of activities that would be
sufficiently “principal” to be compensable, but not sufficiently
principal to commence the workday. Accepting the necessary import
of our holding in Steiner , we conclude that the locker
rooms where the special safety gear is donned and doffed are the
relevant “place of performance” of the principal activity that the
employee was employed to perform within the meaning of §4(a)(1).
Walking to that place before starting work is excluded from FLSA
coverage, but the statutory text does not exclude walking from that
place to another area within the plant immediately after the
workday has
commenced. Purpose IBP emphasizes
that our decision in Anderson v. Mt. Clemens Pottery
Co., 328 U. S. 680 , may well have been the
proximate cause of the enactment of the Portal-to-Portal Act. In
that case we held that the FLSA mandated compensation for the time
that employees spent walking from time clocks located near the
plant entrance to their respective places of work prior to the
start of their productive labor. Id., at 690–691. In IBP’s
view, Congress’ forceful repudiation of that holding reflects a
purpose to exclude what IBP regards as the quite similar walking
time spent by respondents before and after their work slaughtering
cattle and processing meat. Even if there is ambiguity in the
statute, we should construe it to effectuate that important
purpose. This argument is also
unpersuasive. There is a critical difference between the walking at
issue in Anderson and the walking at issue in this case.
In Anderson the walking preceded the employees’ principal
activity; it occurred before the workday began. The relevant
walking in this case occurs after the workday begins and before it
ends. Only if we were to endorse IBP’s novel submission that an
activity can be sufficiently “principal” to be compensable, but not
sufficiently so to start the workday, would this case be comparable
to Anderson. Moreover, there is a significant
difference between the open-ended and potentially expansive
liability that might result from a rule that treated travel before
the workday begins as compensable, and the rule at issue in this
case. Indeed, for processing division knife users, the largest
segment of the work force at IBP’s plant, the walking time in
dispute here consumes less time than the donning and doffing
activities that precede or follow it. It is more comparable to time
spent walking between two different positions on an assembly line
than to the prework walking in Anderson. Regulations The regulations
adopted by the Secretary of Labor in 1947 support respondents’ view
that when donning and doffing of protective gear are compensable
activities, they may also define the outer limits of the workday.
Under those regulations, the few minutes spent walking between the
locker rooms and the production area are similar to the time spent
walking between two different workplaces on the disassembly line.
See 29 CFR §790.7(c) (2005) (explaining that the Portal-to-Portal
Act does not affect the compensability of time spent traveling from
the place of performance of one principal activity to that of
another). See also §785.38 (explaining, in a later regulation
interpreting the FLSA, that “[w]here an employee is required to
report at a meeting place to receive instructions or to perform
other work there, or to pick up and to carry tools, the travel from
the designated place to the work place is part of the day’s work,
and must be counted as hours worked
…”). IBP argues,
however, that two provisions in the regulations point to a
different conclusion—the use of the phrase “whistle to whistle” in
discussing the limits of the “workday,” §790.6, and a footnote
stating that postchanging walking time is not “necessarily”
excluded from the scope of §4(a)(1). §790.7(g),
n. 49. The “whistle to whistle”
reference does reflect the view that in most situations the workday
will be defined by the beginning and ending of the primary
productive activity. But the relevant text describes the workday as
“roughly the period ‘from whistle to whistle.’ ”
§790.6(a) (emphasis added). Indeed, the next subsection of this
same regulation states: “ ‘Workday’ as used in the Portal Act
means, in general, the period between the commencement and
completion on the same workday of an employee’s principal activity
or activities.” §790.6(b). IBP’s emphasis on the “whistle to
whistle” reference is
unavailing. The footnote on which IBP relies
states: “Washing up after work, like the
changing of clothes, may in certain situations be so directly
related to the specific work the employee is employed to perform
that it would be regarded as an integral part of the employee’s
‘principal activity.’ This does not necessarily mean ,
however, that travel between the washroom or clothes-changing place
and the actual place of performance of the specific work the
employee is employed to perform, would be excluded from the type of
travel to which section 4(a) refers.” §790.7(g), n. 49
(emphasis added; citations
omitted). This footnote does
indicate that the Secretary assumed that there would be some cases
in which walking between a locker room where the employee performs
her first principal activity and the production line would be
covered by the FLSA and some cases in which it would not be. That
assumption is, of course, inconsistent with IBP’s submission that
such walking is always excluded by §4(a), just as it is
inconsistent with respondents’ view that such walking is never excluded. Whatever the correct explanation for the
Secretary’s ambiguous (and apparently ambivalent) statement may be,
it is not sufficient to overcome the clear statements in the text
of the regulations that support our holding. And it surely is not
sufficient to overcome the statute itself, whose meaning is
definitively resolved by Steiner . For the foregoing
reasons, we hold that any activity that is “integral and
indispensable” to a “principal activity” is itself a “principal
activity” under §4(a) of the Portal-to-Portal Act. Moreover, during
a continuous workday, any walking time that occurs
after the beginning of the employee’s first principal activity and
before the end of the employee’s last principal activity is
excluded from the scope of that provision, and as a result is
covered by the
FLSA. III Respondent in No. 04–66, Barber Foods, Inc.
(Barber), operates a poultry processing plant in Portland, Maine,
that employs about 300 production workers. These employees operate
six production lines and perform a variety of tasks that require
different combinations of protective clothing. They are paid by the
hour from the time they punch in to computerized time clocks
located at the entrances to the production
floor. Petitioners are Barber employees and former
employees who brought this action to recover compensation for
alleged unrecorded work covered by the FLSA. Specifically, they
claimed that Barber’s failure to compensate them for (a) donning
and doffing required protective gear and (b) the attendant walking
and waiting violated the
statute. After extensive
discovery, the Magistrate Judge issued a comprehensive opinion
analyzing the facts in detail, and recommending the entry of
partial summary judgment in favor of Barber. That opinion, which
was later adopted by the District Court for Maine, included two
critical
rulings. First, the Magistrate
held that “the donning and doffing of clothing and equipment
required by the defendant or by government regulation, as opposed
to clothing and equipment which employees choose to wear or use at
their option, is an integral part of the plaintiffs’ work [and
therefore are] not excluded from compensation under the
Portal-to-Portal Act as preliminary or postliminary activities.”
App. to Pet. for Cert. in 04–66, pp.
36a–40a. Second, the
Magistrate rejected petitioners’ claims for “compensation for the
time spent before obtaining their clothing and equipment.” Id. , at 33a. Such time, in the Magistrate’s view, “could
[not] reasonably be construed to be an integral part of employees’
work activities any more than walking to the cage from which
hairnets and earplugs are dispensed … .” Ibid. Accordingly, Barber was “entitled to summary judgment on any claims
based on time spent walking from the plant entrances to an
employee’s workstation, locker, time clock or site where clothing
and equipment required to be worn on the job is to be obtained and
any claims based on time spent waiting to punch in or out for such
clothing or equipment.” Id. , at
33a–34a. The Magistrate
Judge’s opinion did not specifically address the
question whether the walking time between the
production line and the place of donning and doffing was
encompassed by §4 of the Portal-to-Portal Act, and thus excluded
from coverage under the FLSA. Whatever the intended scope of the
Magistrate’s grant of partial summary judgment, the questions
submitted to the jury after trial asked jurors to consider only
whether Barber was required to compensate petitioners for the time
they spent actually donning and doffing various
gear. Before the case was submitted to the jury,
the parties stipulated that four categories of workers—rotating,
set-up, meatroom, and shipping and receiving associates—were
required to don protective gear at the beginning of their shifts
and were required to doff this gear at the end of their shifts. The
jury then made factual findings with regard to the amount of time
reasonably required for each category of employees to don and doff
such items; the jury concluded that such time was de
minimis and therefore not compensable. The jury further
concluded that two other categories of employees—maintenance and
sanitation associates—were not required to don protective gear
before starting their shifts.[ Footnote 7 ] Accordingly, the jury ruled for Barber on all
counts. On appeal, petitioners argued, among other
things, that the District Court had improperly excluded as
noncompensable the time employees spend walking to the production
floor after donning required safety gear and the time they spend
walking from the production floor to the area where they doff such
gear. The Court of Appeals rejected petitioners’ argument,
concluding that such walking time was a species of preliminary and
postliminary activity excluded from FLSA coverage by §§4(a)(1) and
(2) of the Portal-to-Portal Act. 360 F. 3d, at 281. As we have
explained in our discussion of IBP’s submission, see Part II, supra , that categorical conclusion was
incorrect. Petitioners also argued in the Court of
Appeals that the waiting time associated with the donning and
doffing of clothes was compensable. The Court of Appeals disagreed,
holding that the waiting time qualified as a “preliminary or
postliminary activity” and thus was excluded from FLSA coverage by
the Portal-to-Portal Act. 360 F. 3d, at 282. Our analysis in
Part II, supra , demonstrates that the Court of Appeals was
incorrect with regard to the predoffing waiting time. Because
doffing gear that is “integral and indispensable” to employees’
work is a “principal activity” under the statute, the continuous
workday rule mandates that time spent waiting to doff is not
affected by the Portal-to-Portal Act and is instead covered by the
FLSA. The time spent waiting to don—time that
elapses before the principal activity of donning integral
and indispensable gear—presents the quite different question
whether it should have the effect of advancing the time when the
workday begins. Barber argues that such predonning waiting time is
explicitly covered by §4(a)(2) of the Portal-to-Portal Act, which,
as noted above, excludes “activities which are preliminary to or
postliminary to [a] principal activity or activities” from the
scope of the FLSA. 29 U. S. C.
§254(a)(2). By contrast, petitioners, supported by the
United States as amicus curiae, maintain that the
predonning waiting time is “integral and indispensable” to the
“principal activity” of donning, and is therefore itself a
principal activity. However, unlike the donning of certain types of
protective gear, which is always essential if the worker
is to do his job, the waiting may or may not be necessary in
particular situations or for every employee. It is certainly not
“integral and indispensable” in the same sense that the donning is.
It does, however, always comfortably qualify as a “preliminary”
activity. We thus do not agree with petitioners that
the predonning waiting time at issue in this case is a “principal
activity” under §4(a).[ Footnote
8 ] As Barber points out, the fact that certain preshift
activities are necessary for employees to engage in their principal
activities does not mean that those preshift activities are
“integral and indispensable” to a “principal activity” under Steiner . For example, walking from a time clock near the
factory gate to a workstation is certainly necessary for employees
to begin their work, but it is indisputable that the
Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson ’s holding that such walking time was compensable
under the FLSA. We discern no limiting principle that would allow
us to conclude that the waiting time in dispute here is a
“principal activity” under §4(a), without also leading to the
logical (but untenable) conclusion that the walking time at issue
in Anderson would be a “principal activity” under §4(a)
and would thus be unaffected by the Portal-to-Portal
Act. The Government also relies on a regulation
promulgated by the Secretary of Labor as supporting petitioners’
view. That regulation, 29 CFR §790.7(h) (2005), states that when an
employee “is required by his employer to report at a particular
hour at his workbench or other place where he performs his
principal activity, if the employee is there at that hour ready and
willing to work but for some reason beyond his control there is no
work for him to perform until some time has elapsed, waiting for
work would be an integral part of the employee’s principal
activities.” That regulation would be applicable if Barber required
its workers to report to the changing area at a specific time only
to find that no protective gear was available until after some time
had elapsed, but there is no such evidence in the record in this
case. More pertinent, we believe, is the portion of
§790.7 that characterizes the time that employees must spend
waiting to check in or waiting to receive their paychecks as
generally a “preliminary” activity covered by the Portal-to-Portal
Act. See §790.7(g). That regulation is fully consistent with the
statutory provisions that allow the compensability of such
collateral activities to depend on either the agreement of the
parties or the custom and practice in the particular
industry. In short, we are not persuaded that such
waiting—which in this case is two steps removed from the productive
activity on the assembly line—is “integral and indispensable” to a
“principal activity” that identifies the time when the continuous
workday begins. Accordingly, we hold that §4(a)(2) excludes from
the scope of the FLSA the time employees spend waiting to don the
first piece of gear that marks the beginning of the continuous
workday. IV For the reasons stated above, we affirm the
judgment of the Court of Appeals for the Ninth Circuit in No.
03–1238. We affirm in part and reverse in part the judgment of the
Court of Appeals for the First Circuit in No. 04–66, and we remand
the case for further proceedings consistent with this
opinion. It
is so
ordered. Footnote
1 The most pertinent definition provides: “ ‘Employ’
includes to suffer or permit to work.” 52 Stat. 1060, 29 U.
S. C.
§203(g). Footnote
2 Part II of the Portal-to-Portal Act,
entitled “existing claims,” states in relevant
part: “Sec. 2. Relief From Certain Existing Claims
Under the Fair Labor Standards Act of 1938
… — “(a) No employer shall be subject to any
liability or punishment under the Fair Labor Standards Act … (in
any action or proceeding commenced prior to or on or after the date
of the enactment of this Act), on account of the failure of such
employer to pay an employee minimum wages, or to pay an employee
overtime compensation, for or on account of any activity of an
employee engaged in prior to the date of the enactment of this Act,
except an activity which was compensable by
either— “(1) an express provision of a written or
nonwritten contract in effect, at the time of such activity,
between such employee, his agent, or collective-bargaining
representative and his employer;
or “(2) a custom or practice in effect, at the
time of such activity, at the establishment or other place where
such employee was employed, covering such activity, not
inconsistent with a written or nonwritten contract, in effect at
the time of such activity, between such employee, his agent, or
collective-bargaining representative and his employer.” 61 Stat. 85
(codified at 29 U. S. C.
§252(a)). Footnote
3 The regulation provides in
full: “Section 4 of
the Portal Act does not affect the computation of hours worked
within the ‘workday’ proper, roughly described as the period ‘from
whistle to whistle,’ and its provisions have nothing to do with the
compensability under the Fair Labor Standards Act of any activities
engaged in by an employee during that period. Under the provisions
of section 4, one of the conditions that must be present before
‘preliminary’ or ‘postliminary’ activities are excluded from hours
worked is that they ‘occur either prior to the time on any
particular workday at which the employee commences, or subsequent
to the time on any particular workday at which he ceases’ the
principal activity or activities which he is employed to perform.
Accordingly, to the extent that activities engaged in by an
employee occur after the employee commences to perform the first
principal activity on a particular workday and before he ceases the
performance of the last principal activity on a particular workday,
the provisions of that section have no application. Periods of time
between the commencement of the employee’s first principal activity
and the completion of his last principal activity on any workday
must be included in the computation of hours worked to the same
extent as would be required if the Portal Act had not been enacted.
The principles for determining hours worked within the ‘workday’
proper will continue to be those established under the Fair Labor
Standards Act without reference to the Portal Act, which is
concerned with this question only as it relates to time spent
outside the ‘workday’ in activities of the kind described in
section 4.” §790.6(a) (footnotes
omitted). Footnote
4 IBP does not contend that this clothes-changing time
fully compensated respondents for the preproduction and
postproduction time at issue in this
case. Footnote
5 The District Court
explained: “Walking time is compensable if it occurs after the start of
the workday. 29 U. S. C. §254(a). Walking time is excluded
under the Portal to Portal Act only if it occurs ‘either prior to
the time on any particular work day at which such employee
commences or subsequent to the time on any particular work day at
which he ceases such principal activity or activities.’ Id. The work day begins with the commencement of an
employer’s principal activity or activities and ends with the
completion of the employee’s activity… .” App. to Pet. for
Cert. in No. 03–1238, pp.
53a–54a. Footnote
6 In fact, as noted above, in Steiner we specifically endorsed the view of the Court of Appeals that the
definition of “principal activity or activities” in §4 encompassed
activities “ ‘integral and indispensable’ ” to those
principal activities. We did not make any distinction between
§4(a)(1) and §4(a)(2). 350 U. S., at
253. Footnote
7 The claims brought by these workers are no
longer part of this
case. Footnote
8 As explained below, our analysis would be
different if Barber required its employees to arrive at a
particular time in order to begin
waiting.