The Week Ahead: In the Supreme Court

By October 3, 2005Judicial Nominations

History is made today when the Supreme Court begins its term — the first Monday in October — with its 17th Chief Justice, John Roberts, at the helm.

Among the cases on the docket, one that he and his colleagues will hear today is one called, IBP v. Alvarez, which has been paired with another case with the identical issue, Tum v. Barber Foods. This is a case both arcane and not. It involves interpretation of something called the Portal-to-Portal Act, read in conjunction with federal wage and hour laws. At issue is whether workers are required to be paid under Federal law for time spent at the beginning and end of the day — if only a few minutes — donning and doffing (as it is called) safety equipment. The time — and the pay at issue — for each employee is tiny. However, in the aggregate, the potential liability for employers is enormous.

Regardless of how you feel about the merits of the question, there was a little funny business from our friends in the labor movement that made this issue emerge. What’s ironic is that over the past several decades, employees in union-represented facilities (most by the UFCW) were not paid for this time. Ironic, no? That’s because the union bargained it away. That is, in the course of collective bargaining, they gave up any claim to be paid for this time, a quid that any labor negotiator will tell you was undoubtedly rewarded with a quo somewhere down the line.

Well, one day the boys and girls down at the UFCW were sitting around and figured they could get this time paid even if they couldn’t get it in the contract. They sent a letter to the friendly old Clinton Labor Department and said, “Hey — we were just wondering — shouldn’t we be paid for this time?” Lo and behold, the good customer-friendly folks over at the Clinton Labor Department — a place up ’til then not known for its speedy replies — wrote back almost instantly (so fast it made some cynics wonder if the letter had been already drafted) to say, “Glad you asked. Yes, this time should absolutely be compensated time under Federal wage and hour laws.” They ignored, of course that the UFCW had bargained this away for all these years. So the UFCW came calling to all these employers with an enormous bill for back pay. They prevailed in the Ninth Circuit (big surprise), but lost in the First Circuit. The Supreme Court now has the case to resolve the conflict in the Circuits.

In our view, the court should not require this time to be compensable (in legal parlance), but should defer to the collective bargaining agreements where present. However, seems to us that if the court decides that this time is indeed compensable, it’s only fair that the UFCW split the bill with the employers, having sold their members out for all those years, no?

Here’s a link to the case summary and here’s a link to the amicus brief we filed in the case.