                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

DeAsencio v. Tyson Foods Inc
Precedential or Non-Precedential: Precedential

Docket No. 06-3502




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 06-3502


MELANIA FELIX DE ASENCIO; MANUEL A. GUTIERREZ;
     ASELA RUIZ; EUSEBIA RUIZ; LUIS A. VIGO;
   LUZ CORDOVA; HECTOR PANTAJOS, on behalf of
                         themselves
        and all other similarly situated individuals,
                                                Appellants

                                 v.

                    TYSON FOODS, INC.


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 00-cv-04294)
          District Judge: Honorable Robert F. Kelly


                     Argued July 12, 2007

 Before: SLOVITER, ALDISERT, and ROTH, Circuit Judges

                  (Filed September 6, 2007)


Thomas J. Elliott
Frederick P. Santarelli (Argued)
Franco A. Corrado
Elliott, Greenleaf & Siedzikowski
Blue Bell, PA l9422

      Attorneys for Appellants
Michael J. Mueller (Argued)
Joel M. Cohn
Michael S. McIntosh
Akin, Gump, Strauss, Hauer & Feld
Washington, DC 20036

      Attorneys for Appellee

Howard M. Radzely
       Solicitor of Labor
Steven J. Mandel
       Associate Solicitor
Paul L. Frieden
       Counsel for Appellate Litigation
Joanna Hull (Argued)
U. S. Department of Labor
Washington, DC 20210

      Attorneys for Amicus Curiae Appellants,
      Secretary of Labor

Robin S. Conrad
National Chamber Litigation Center, Inc.
Washington, DC 20062

Thomas J. Walsh, Jr.
Arnold E. Perl
Patrick D. Riederer
Ford & Harrison LLP
Memphis, TN 38120

      Attorneys for Amicus Curiae Appellee,
      Chamber Commerce of the United States

David R. Wylie
D. Christopher Lauderdale
Jackson Lewis LLP
Greenville, SC 29601

      Attorneys for Amicus Curiae Appellee,

                               2
National Chicken Council and American Meat Institute


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        In instructing the jury in this case brought by poultry
workers under the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA” or “Act”), the District Court stated that in
considering whether the workers’ donning, doffing and washing
was “work” under the Act, the jury must consider whether the
activities involved physical or mental exertion. The jury decided
the issue of work against the workers and therefore never
reached the defenses proffered by the employer. The workers
appeal, arguing that the District Court’s instruction on donning
and doffing was erroneous as a matter of law.1 This is an issue
that has created considerable interest.2


       1
           The National Chicken Council and the American Meat
Institute, as well as the Chamber of Commerce of the United States
of America, have submitted briefs as amici curiae in support of
Tyson. The Secretary of Labor has submitted a brief as amicus in
support of the appellant workers.
       2
         See, e.g., Rachael Langston, IBP v. Alvarez: Reconciling
the FLSA With the Portal-To-Portal Act, 27 Berkeley J. Emp. &
Lab. L. 545 (2006); Lynn M. Carroll, Employment Law – Fair
Labor Standards Act Requires Compensation for Employees
Walking to and From Workstations – IBP, Inc. v. Alvarez, 40
Suffolk U. L. Rev. 769 (2007); Robert J. Rabin, A Review of the
Supreme Court’s Labor and Employment Law Decisions: 2005-
2006 Term, 22 Lab. Law 115 (Fall 2006); Tresa Baldas, I Have to
Put That on? Pay me for the Time!, The National Law Journal, July
2, 2007, at 6; Nicholas D’Ambrosio, When Donning and Doffing
Work Gear is Considered Compensable Time, The Business
R e v i e w ,         S e p t e m b e r        8 ,     2 0 0 3 ,
http://www.bizjournals.com/albany/stories
/2003/09/08/smallb3.html; Michael Matza, Settlement Gives Meat

                                3
                                  I.

        Plaintiffs/Appellants are current and former chicken
processing plant workers in New Holland, Pennsylvania, who
brought this action against Tyson Foods, Inc. (“Tyson”), arguing
that Tyson does not pay them for the time they spend “donning
and doffing,” as well as washing, their work gear. Tyson
requires its employees to put on and take off safety and sanitary
clothing (i.e., “donning and doffing”), and engage in washing
activities, pursuant to government regulations and corporate or
local policy and practice.3 This time must be spent six times a
day: before and after their paid shifts and two daily meal breaks.
Most employees generally wear a smock, hairnet, beard net, ear
plugs, and safety glasses.4 Additional sanitary and protective
items that certain employees wear include a dust mask, plastic
apron, soft plastic sleeves, cotton glove liners, rubber gloves, a
metal mesh glove, and rubber boots.

        Tyson’s witness Michael Good, the complex’s manager,
testified that these activities take six to ten minutes collectively
per shift (presumably per employee). Appellants’ expert




Workers More Pay, Phila. Inquirer, June 13, 2007, at C01.
       3
          Tyson’s internal operating requirements provide that a
worker may not keep the gear at home and wear it to the plant nor
can a worker wear the gear home. See App. at 1402-03, 1798; see
also 9 C.F.R. 416.1 et seq. (1996) (requiring that food processing
establishments “must be operated and maintained in a manner
sufficient to prevent the creation of insanitary conditions and to
ensure that product is not adulterated”).
       4
           At oral argument, Tyson disputed that it necessarily
required such gear, but the parties stipulated that the clothing was
required in their joint pre-trial memorandum. Tyson notes in its
brief that some employees wear less than the typical set of gear,
pointing to testimony where a worker wore “just the smock[,]”
App. at 876, or where workers did not wear smocks or safety
glasses.

                                  4
estimated that the activities take 13.3 minutes per shift.5
Although Tyson does not record the time its workers spend on
donning and doffing, Tyson avers that certain of the employees
receive an extra fifteen minutes of compensation “which is
enough to fully compensate the plaintiffs for the very activities
that are the basis for this suit.” Appellee’s Br. at 6. However,
Good testified at trial that employees in the “receiving, killing,
and picking” and “evisceration” departments do not receive the
extra fifteen minutes of compensation.

        Appellants filed suit against Tyson on August 22, 2000,
under both the FLSA and state law (the Pennsylvania Wage
Payment and Collection Law (“WPCL”), 43 Pa. Cons. Stat. §§
260.1-260.45) on behalf of themselves and similarly situated
co-workers at Tyson’s chicken processing complex, alleging that
Tyson was liable to its employees for time spent donning,
doffing and washing. See De Asencio v. Tyson Foods, Inc., 342
F.3d 301, 304, 312 (3d Cir. 2003). Appellants sought collective
treatment of their FLSA action under the Act’s opt-in provisions;
540 workers joined the suit. On interlocutory appeal, this court
decided that “the District Court did not exercise sound discretion
in granting supplemental jurisdiction over the WPCL action,”
and denied certification of the WPCL class with respect to all
plaintiffs. De Asencio, 342 F.3d at 312.

       Tyson subsequently moved for summary judgment,
arguing first, that “the acts of donning, doffing, and sanitizing
protective clothing and equipment are not work as defined by the
FLSA.” App. at 2357. Second, Tyson argued that, “if such



       5
         Although appellants’ expert had originally estimated the
actions took 15.7 minutes, Tyson’s expert excluded certain non-
compensable activities, such as swiping of time card and time spent
before the donning of gear, and appellants do not disagree. See
IBP, Inc. v. Alvarez, 546 U.S. 21, 40-41 (2005) (predonning
waiting time, and waiting for supplies, not a principal activity and
excluded from coverage under Portal-to-Portal Act of 1947, 29
U.S.C. § 251 et seq.); Anderson v. Mt. Clemens Pottery, 328 U.S.
680, 689 (1946) (ignoring swiping-at-clock time).

                                 5
activities are work, then they are de minimis and thus should not
be compensated.” 6 Id. Third, Tyson alleged that the activity, if
work, would nevertheless be “not compensable under the Portal
to Portal Act.” Id. In denying summary judgment on each of
these bases, the District Court concluded that it would be “hasty”
to rule on the mixed law/fact question of whether the activity
was compensable “work” without further development of the
record. It observed that there was “minimal relevant case law in
our jurisdiction” and “there is significant disagreement among
the jurisdictions who have considered these issues.” Id. The
Court believed “such a decision would be a mistake and a
disservice to the body of law on which we depend” and
concluded that, in view of the “many disputed factual issues
intertwined with the legal issues” on these three points,
“summary judgment is not appropriate and would be premature
at this time.” App. at 2357, 2359.

         Trial commenced in this action in June 2006.7 In their
joint pretrial memorandum, the parties identified the legal issues
at trial to be “1. Whether the activities and time at issue
constitute ‘work’ for purposes of the FLSA? . . . 2. Whether the
time incurred on such activities is de minimis for purposes of the
FLSA? 3. Whether the ‘opt-ins’ [to the class] are similarly
situated and have put on representative evidence for purposes of
the FLSA?” App. at 2478. To expedite the trial, Tyson
withdrew “its position that the clothes-changing and washing
activities were not ‘integral and indispensible’ to the principal


       6
           The de minimis doctrine is discussed further infra;
generally, certain brief moments of work may be deemed difficult
to quantify and record and are therefore considered
uncompensable.
       7
          Appellants also argue that the District Court erred in
refusing to postpone the trial to “avoid inherent prejudice from the
intense extraordinary public debate and onslaught of negative
publicity about immigrant workers in America, which pervaded the
national and local media immediately prior to and throughout the
time of the June, 2006 trial.” Appellants’ Br. at 4-5. Because of
our disposition of this case, this is a moot issue.

                                 6
activities that the plaintiffs were hired to perform.” Id.

        During the charging conference, the parties sparred over
the definition of “work” that would be read to the jury.
Appellants’ counsel argued that “[a]ny instruction that equates
work with the need for any level of physical or mental exertion
directly contradicts the [Supreme Court’s] decision in IBP v.
Alvarez, where the [C]ourt expressly stated [that] exertion is not,
in fact, necessary for an activity to constitute work under the
FLSA,” and counsel cited to Armour & Co. v. Wantock, 323
U.S. 126 (1944), in support of that proposition. App. at 2035.
In response, Tyson’s counsel argued that Alvarez does not
overrule the Supreme Court’s pre-Armour definition of work 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.”
Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321
U.S. 590, 598 (1944). They argued that the Armour decision,
which held that time on call spent by a private firefighting force
could be deemed “work,” merely “talks about a situation where
an individual is engaged to wait,” App. at 2036, and that “[w]e
don’t have that situation here. Here we have a situation where
they’re alleging that certain types of physical activities are work,
and it’s our position that in that context, it’s Tennessee Coal . . .
[that] should be applied and that’s what our instruction tracks,
[y]our Honor.” App. at 2037. In response, appellants’ counsel
emphasized that the Supreme Court’s Alvarez decision
“unanimously, unanimously stated that” the Armour decision
“clarif[ied] that exertion is not, in fact, necessary for an activity
to constitute work under the FLSA, period. And I don’t know
how you can get around that.” App. at 2037.

       The District Court ultimately gave the following work
instruction:

              Work is what we’re talking about. What –
       does the activity the plaintiffs claim they were
       doing or performing, was it work? To find that an
       employee should be paid for an activity under the
       Fair Labor Standards Act, you first need to

                                  7
      determine whether or not the activity at issue is
      work. The law states that work is any 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 its business . . . .

              I said it requires exertion, either physical or
      mental, but exertion is not, in fact, necessary for all
      activity to constitute work under the Fair Labor
      Standards Act[. T]here – an employer, if he
      chooses, may hire a worker to do nothing or to do
      nothing but wait for something to happen. So that
      would be an exception of the usual situation where
      the definition of work requires exertion.

              The plaintiffs claim that their donning,
      doffing, washing and rinsing activities are work.
      In deciding whether these activities are work under
      the law, you may consider the following factors.
      For each job position, if the donning, doffing and
      washing at issue do not require physical or mental
      exertion, the activities are not work. Therefore,
      you may ask yourself, is the clothing heavy or
      cumbersome, or is it lightweight and easy to put on
      or take off? Does an employee need to concentrate
      to wash their hands or gloves or put on or take off
      these clothes? Can an employee put on or take off
      their clothes or wash their hands or gloves while
      walking, talking or doing other things?

App. at 2209-11 (emphasis added).

       Following two and one-half hours of deliberation, the jury
submitted a written question to the Court: “What is the meaning
of exertion in the definition of work? Physical, or should we
determine what or how much exertion?” App. at 3096, 2236.
Following argument from the parties, the District Court read the
jury the Webster’s Dictionary definition of “exertion” and
re-read the above jury charge on “work.” App. at 2236-39.

                                8
Thereafter, the jury returned a unanimous verdict finding
plaintiffs had not “provided representative evidence that [the
activities at issue] are ‘work’” for purposes of the FLSA. App.
at 3094-95. As a result, the jury did not reach the questions on
the back of the verdict form as to whether the work was de
minimis or whether appellants had been paid extra minutes to
compensate for such time. Based on the jury’s verdict, the
District Court entered judgment on behalf of Tyson Foods.

                                II.

        “Although we generally review jury instructions for abuse
of discretion, our review is plenary when the question is whether
a district court’s instructions misstated the law.” United States
v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005) (internal citations
and quotations omitted). “As on all occasions when we consider
jury instructions[,] we consider the totality of the instructions
and not a particular sentence or paragraph in isolation.” United
States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).

        Appellants, and the Secretary of Labor as amicus, argue
that although the jury instructions noted that “exertion is not, in
fact, necessary” for activity to constitute work under the FLSA,
the District Court erred in informing the jury that such
exertionless work is an exception to the “usual situation[.]”
They assert it was error to inform the jury that “[f]or each job
position, if the donning, doffing and washing at issue do not
require physical or mental exertion, the activities are not work.”
App. at 2210. In response, Tyson argues that the “heavy or
cumbersome” language in the instruction was appropriate,
relying in the main upon Reich v. IBP, Inc., 38 F.3d 1123, 1125-
26 (10th Cir. 1994) (holding that “[t]he placement of a pair of
safety glasses, a pair of earplugs and a hardhat into or onto the
appropriate location on the head takes all of a few seconds and
requires little or no concentration,” so that these activities did
not meet the “physical or mental exertion” requirement and
accordingly could not be considered “work” under the FLSA).

      The FLSA does not define the term “work.” In its
opinion in Alvarez issued in 2005, a unanimous Supreme Court

                                 9
provided a concise survey of how its case law has defined the
term:

       Our early cases defined [work] 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.” 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.” 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.” 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.

Alvarez, 546 U.S. at 25-26 (certain internal citations omitted).

        The Alvarez Court then discussed how, in response to
Anderson, 328 U.S. at 691-92, where the Court held that the
term “workweek” in the FLSA included the time employees
spent walking from time clocks near a factory entrance to their
workstations, Congress passed the Portal-to-Portal Act in order
to shield employers from unexpected liability. The Act excluded
the activities of “(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

                                10
or activities[.]” Alvarez, 546 U.S. at 27-28 (quoting 29 U.S.C. §
254). The Alvarez Court explained, however, that “the Portal-to-
Portal Act does not purport to change this Court’s earlier
descriptions of the term[ ] ‘work.’” Id. at 28.

       The Alvarez decision was a consolidated appeal of
Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), and Tum v.
Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004). The Supreme
Court held, in response to a question raised in both cases, that
the time employees spend walking between changing areas
(where they had donned required protective gear) and production
areas, and time spent waiting to remove that gear at the end of
the work day is compensable under the FLSA, as amended by
the Portal-to-Portal Act. The Court further held, in response to a
question raised only in Tum, that time spent waiting to receive
gear before the work shift begins is not compensable, although it
emphasized that its analysis would be different if an employer
required its employees to arrive at a certain time and then wait to
don the gear.

        It is useful to examine the lower court opinions in Tum
and Alvarez. In Alvarez, beef and pork slaughter and processing
employees brought an FLSA action, arguing that they should be
compensated for donning and doffing of their gear (which was,
for certain employees, heavier and more elaborate than that at
issue in the instant case, including a chain-mail type material for
knife-wielding employees). The Court of Appeals for the Ninth
Circuit explained the breadth of the definition of “work” under
the FLSA, and then explained how the Portal-to-Portal Act and
the de minimis doctrine nevertheless operate to narrow the
compensability of such work. The Court of Appeals observed,
as did the Supreme Court in its consideration of the case, that
Tennessee Coal defined work 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.” Alvarez, 339 F.3d at 902 (citations and
internal quotations omitted) (emphasis added). The Court of
Appeals explained:

       Definitionally incorporative, [Tennessee Coal]’s

                                11
       “work” term includes even non-exertional acts.
       See [Armour] (noting that even “exertion” is not
       the sine qua non of “work” because “an employer
       . . . may hire a man to do nothing, or to do nothing
       but wait for something to happen”). Plaintiffs’
       donning and doffing, as well as the attendant
       retrieval and waiting, constitute “work” under
       [Tennessee Coal’s] and Armour’s catholic
       definition: “pursued necessarily and primarily for
       the benefit of the employer,” . . . these tasks are
       activity, burdensome or not, performed pursuant to
       IBP’s mandate for IBP’s benefit as an employer.
       The activities, therefore, constitute “work.”

Id. (certain internal citations omitted).

       The Ninth Circuit’s opinion observed, however, that the
conclusion “[t]hat such activity is ‘work’ as a threshold matter
does not mean without more that the activity is necessarily
compensable.” Id. It explained how two sources of law in
particular may operate to block compensation for such broadly
defined “work.” The first is the Portal-to-Portal Act, which, the
court explained:

       relieves an employer of responsibility for
       compensating employees for “activities which are
       preliminary or postliminary to [the] principal
       activity or activities” of a given job. 29 U.S.C. §
       254(a) (1999). Not all “preliminary or
       postliminary” activities can go uncompensated,
       however. “[A]ctivities performed either before or
       after the regular work shift,” the Supreme Court
       has noted, are compensable “if those activities are
       an integral and indispensable part of the principal
       activities.”

Alvarez, 339 F.3d at 902 (quoting Steiner v. Mitchell, 350 U.S.
247, 256 (1956)).

       As to the second of the two sources, the Court of Appeals

                                 12
explained that de minimis work is also noncompensable, and
cited to Anderson, 328 U.S. at 692 (“When the matter in issue
concerns only a few seconds or minutes of work beyond the
scheduled working hours . . . such trifles may be disregarded[,
for] [s]plit-second absurdities are not justified by the actualities
or working conditions or by the policy of the [FLSA].”).

        The Alvarez Court of Appeals then agreed with the
district court’s post-bench-trial conclusions in its findings of fact
and conclusions of law as to why certain of the donning and
doffing were compensable and others were not. As all the
donning/doffing/washing was mandated and necessary to the
principal work being performed, the donning and doffing was
compensable as an integral and indispensable part of the
principal activity pursuant to the Portal-to-Portal Act.
Nonetheless, the court concluded that the donning of certain
items, such as safety goggles and hardhats, was noncompensable
as de minimis. It stated:

       While we do not suggest that the donning of such
       gear is “trifl[ing],” see [Anderson], 328 U.S. at
       692, we do believe that neither FLSA policy nor
       “the actualities” of plaintiffs’ working conditions
       justify compensation for the time spent performing
       these tasks. Accordingly, donning and doffing of
       all protective gear is integral and indispensable . . .
       and generally compensable. However, the specific
       tasks of donning and doffing of non-unique
       protective gear such as hardhats and safety goggles
       is noncompensable as de minimis . . . In sum, we
       agree with the district court’s conclusion, but for
       different reasons in part. In this context, “donning
       and doffing” and “waiting and walking” constitute
       compensable work activities except for the de
       minimis time associated with the donning and
       doffing of non-unique protective gear.

Alvarez, 339 F.3d at 904 (certain internal citations omitted).

       On appeal, the Supreme Court, in its Alvarez opinion,

                                 13
referenced its holding in Steiner v. Mitchell, 350 U.S. 247, 254
(1956). In Steiner, the Supreme Court had concluded that in
enacting the Portal-to-Portal Act Congress still intended that an
employee’s activities fall “within the protection of the [Fair
Labor Standards] Act if they are an integral part of and are
essential to the principal activities of the employees.” 350 U.S.
at 254. The Steiner Court therefore held “that activities
performed either before or after the regular work shift . . . 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 . . . .” Id. at 256. Subsequently, the
Supreme Court held in Alvarez, “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,” and
is thus compensable under the FLSA. Alvarez, 546 U.S. at 37
(emphasis added); see also Mitchell v. King Packing Co., 350
U.S. 260 (1956) (applying Steiner to hold that workers in a meat
packing plant were entitled to compensation for the time spent
sharpening their knives, because the knife-sharpening activities
were an integral part of, and indispensable to, the principal
activities for which the workers were employed).

       Accordingly, in Alvarez, the Court noted that the
employer “does not challenge the holding below that, in light of
Steiner, the donning and doffing of unique protective gear are
‘principal activities’ under [Section] 4 of the Portal-to-Portal
Act” but, rather, challenged whether post-donning/pre-doffing
walking time was compensable under the Portal-to-Portal Act.
Alvarez, 546 U.S. at 32. The Court concluded that such walking
time after donning is compensable because the donning was an
unchallenged principal activity and therefore it triggered the start
of the workday.8 In other words, donning “gear that is ‘integral



       8
         In Alvarez, the Court noted that “[T]he 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.’ [29 C.F.R.] § 790.6(b).

                                 14
and indispensable’ to employees’ work is a ‘principal activity’
under the statute,” and, thus, “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 [the Portal-to-
Portal Act’s exclusion of walking time], and as a result is
covered by the FLSA.” Alvarez, 546 U.S. at 37, 40.

        The Supreme Court next turned to the decision in Tum v.
Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004). In that case,
the Court of Appeals had agreed that “[i]n the context of this
case, Employees are required by [employer] Barber Foods and or
government regulation to wear the gear. Therefore, [donning
and doffing] are integral to the principal activity and therefore
compensable.” Id. at 279.9 However, the Court of Appeals had
held that the pre-donning waiting time, post-donning walking
time, pre-doffing waiting time and pre-doffing walking time
were all excluded from FLSA coverage by the Portal-to-Portal
Act. The Supreme Court disagreed with almost all of these
holdings. The Court held that the Court of Appeals was
incorrect with regard to its treatment of post-donning walking
time, and pre-doffing waiting and walking time. It stated,
“[b]ecause 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.” Alvarez, 546 U.S. at 40. Moreover, it


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.” Alvarez, 546 U.S. at 29.
       9
         The district court in Tum ruled in a pretrial motion that
donning/doffing was integral to plaintiffs’ employment at the
chicken processor in question, thus removing it from exclusion
under the Portal-to-Portal Act, and this, as noted, was affirmed on
appeal to the First Circuit. The jury in Tum, however, had
“concluded that such time was de minimis and therefore not
compensable” and so, nevertheless, ruled for Barber on the
question of compensation for this work. Alvarez, 546 U.S. at 39.

                                15
also stated that the Court of Appeals was incorrect in concluding
that the “walking time was a species of preliminary and
postliminary activity excluded from FLSA coverage . . . .” Id. at
39.

        The Supreme Court only affirmed the Court of Appeals’
conclusion, that pre-donning waiting time was not a “principal
activity.” It explained that the Portal-to-Portal Act mandated
that such preshift activities are uncompensable: “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.” Id. at 40. The Court
observed, however, that such a conclusion would be different if
“Barber required its employees to arrive at a particular time in
order to begin waiting.” Id. at 40 n.8.

        In light of the foregoing, we conclude that Alvarez not
only reiterated the broad definition of work, but its treatment of
walking and waiting time under the Portal-to-Portal Act
necessarily precludes the consideration of cumbersomeness or
difficulty on the question of whether activities are “work.”
Activity must be “work” to qualify for coverage under the
FLSA, and that “work,” if preliminary or postliminary, will still
be compensable under the Portal-to-Portal Act if it is “integral
and indispensable” to the principal activity. Under Alvarez, such
activities are, in themselves, principal activities. Although we
recognize, of course, that whether donning and doffing is work
was not directly at issue in Alvarez,10 the Court could not have
concluded that walking and waiting time are compensable under
the Portal-to-Portal Act if they were not work themselves.

       Tyson relies upon Reich v. IBP, Inc., 38 F.3d 1123, 1127



       10
          The Supreme Court observed that Alvarez’s employer did
not challenge that the donning and donning of unique gear are
principal activities. Alvarez, 546 U.S. at 32.

                                16
(10th Cir. 1994), a pre-Alvarez case, in support of the District
Court’s use of the “cumbersome” language in the jury charge. In
Reich, the Court of Appeals for the Tenth Circuit held that the
donning and doffing of standard, non-unique protective material,
such as hard hats, earplugs, safety footwear, and safety eyewear,
was not “work” in light of Tennessee Coal and its progeny. 38
F.3d at 1125. Of some importance, the Reich court
acknowledged that it “could also be said that the time spent
putting on and taking off these items is de minimis as a matter of
law, although it is more properly considered not work at all.
Requiring employees to show up at their workstations with such
standard equipment is no different from having a baseball player
show up in uniform, a businessperson with a suit and tie, or a
judge with a robe. It is simply a prerequisite for the job, and is
purely preliminary in nature.” Id. at 1126 n.1.

        Following issuance of the Alvarez decision, at least one
district court in the Tenth Circuit has considered and rejected the
continued viability of Reich. In Garcia v. Tyson Foods, Inc.,
474 F. Supp. 2d 1240 (D. Kan. 2007), the court stated that it was

       convinced that the Circuit, if given the opportunity
       to revisit the issues in Reich, would approach its
       analysis of the pertinent issues differently in light
       of Alvarez, regardless of whether the Circuit
       ultimately reached the same conclusions
       concerning compensability. Significantly, the
       Circuit did not analyze the issues through the lens
       of the continuous workday rule as clarified by the
       Supreme Court in Alvarez. In light of Alvarez, it
       would seem that the Circuit, if revisiting Reich
       today, would focus not on whether the donning
       and doffing constituted ‘work’ within the meaning
       of Tennessee Coal, but on whether standard
       protective clothing and gear are ‘integral and
       indispensable’ to the work performed by
       production employees. Indeed, the Circuit in
       Reich, although in dicta, certainly stated that
       standard clothing and gear are integral and
       indispensable to the work performed by production

                                17
       employees, suggesting that the Circuit might reach
       a different conclusion on compensability if
       analyzed in the context of Alvarez.

Id. at 1246.

        The Garcia court rejected the argument that the Tenth
Circuit’s post-Reich opinion in Smith v. Aztec Well Servicing
Co., 462 F.3d 1274 (10th Cir. 2006), was indicative of the
continuing vitality of Reich after Alvarez. It noted that “the
Circuit’s ultimate holding in Smith – that travel time was not
compensable – was based on its conclusions that the plaintiffs’
travel time was not integral and indispensable to the plaintiffs’
principal activities and that the plaintiffs’ travel time did not
otherwise fall within the continuous workday. This analysis, a
markedly different one than the Reich analysis, is in accord with
Alvarez and further suggests that the Circuit, if revisiting Reich,
would approach that case differently.” Garcia, 474 F. Supp. 2d
at 1247 (certain internal citations omitted). Unlike the District
Court in Garcia, we will not speculate about what another Court
of Appeals would do if it reconsidered the issue in light of
Alvarez.

        We conclude instead that the better view is that stated in
Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004),
which rejected Reich and reaffirmed the analysis the Ninth
Circuit had previously set forth in its opinion in Alvarez, which
was affirmed by the Supreme Court. The Ballaris court noted
that, generally, preliminary and postliminary activities remain
compensable so long as those activities are an integral and
indispensable part of the principal activities. It observed that 29
C.F.R. § 790.8(c) “provides: ‘Among the activities included as
an integral part of a principal activity are those closely related
activities which are indispensable to its performance. If an
employee in a chemical plant, for example, cannot perform his
principal activities without putting on certain clothes, changing
clothes on the employer’s premises at the beginning and end of
the workday would be an integral part of the employee’s
principal activity.’ . . . Further, ‘where the changing of clothes
on the employer’s premises is required by law, by rules of the

                                18
employer, or by the nature of the work,’ the activity may be
considered integral and indispensable to the principal activities.”
Ballaris, 370 F.3d 901, 910 (quoting 29 C.F.R. § 790.8(c))
(emphasis added by Ballaris court).

        In Ballaris, plaintiffs were silicon wafer manufacturing
workers who were required to “gown,” i.e., don “bunny suits,”
and certain of whom were also obligated to don plant uniforms
underneath the suits as well. The Ballaris court, relying on its
decision in Alvarez, explained that the exertion of the changing
activities was not at issue in deciding whether they were “work”
or not: “In Alvarez, we held that donning and doffing of all
protective gear was compensable worktime. We further held
that, in considering whether putting on and taking off safety
goggles was excluded, the ease of donning and ubiquity of use
did not make the donning of such equipment any less integral
and indispensable. We clarified that the term ‘work,’ as used in
the FLSA, includes even non-exertional acts. We also made it
clear that the donning and doffing of various types of safety
gear, as well as the attendant retrieval and waiting, constituted
‘work.’” Ballaris, 370 F.3d at 910-11 (internal quotations and
citations omitted) (emphasis added).

        The Ballaris court then explained that the fact that the
employer required, and strictly enforced, its policy that
employees don the attire, and, furthermore, that “this activity
was performed at both broad and basic levels for the benefit of
the company,” led to the conclusion that the activity was not
precluded by the Portal-to-Portal Act as merely preliminary. Id.
(internal quotations to panel decision in Alvarez omitted) (citing
Dunlop v. City Electric, Inc., 527 F.2d 394, 399-401 (5th
Cir.1976) (suggesting that the employer’s directive to perform an
action weighs in favor of compensability)). The Ballaris
decision thus supports a much broader definition of “work” in
the first instance, and notes that such “work” may nevertheless
be deemed uncompensable under the Portal-to-Portal Act if it is




                                19
not integral and indispensible to a given job.11

        In light of the broad remedial purpose of the FLSA, see,
e.g., Brock v. Richardson, 812 F.2d 121, 123 (3d Cir. 1987)
(“The Fair Labor Standards Act is part of the large body of
humanitarian and remedial legislation enacted during the Great
Depression, and has been liberally interpreted.”), we conclude
that it was error for the jury instruction to direct the jury to
consider whether the gear was cumbersome, heavy, or required
concentration to don and doff. This language in effect
impermissibly directed the jury to consider whether the poultry
workers had demonstrated some sufficiently laborious degree of
exertion, rather than some form of activity controlled or required
by the employer and pursued for the benefit of the employer;
Armour demonstrates that exertion is not in fact, required for



       11
          The Secretary of Labor also highlights an interesting
provision of the FLSA, 29 U.S.C. § 203(o), which provides, under
the heading of “Hours Worked,” that “[i]n determining . . . the
hours for which an employee is employed, there shall be excluded
any time spent in changing clothes or washing at the beginning or
end of each workday which was excluded from measured working
time during the week involved by the express terms of or by
custom or practice under a bona fide collective-bargaining
agreement applicable to the particular employee.” Of course, no
such collective-bargaining agreement is at issue in this case, but the
very existence of this carve-out for changing time under the
heading “Hours Worked” in the statute provides at least some
indication that such activity is itself properly considered “work”
under the FLSA. See Turner v. City of Philadelphia, 262 F.3d 222,
224 and 224 n.1 (3d Cir. 2001) (examining § 203(o) and noting
that “[w]e assume arguendo, as plaintiffs would have us do, that
clothes and uniform change time would ordinarily be included
within hours worked. . . Defendants do not dispute this point.”).
No mention of the “cumbersome” or “heavy” nature of the
changing or washing may be found in the statute. See Steiner, 350
U.S. at 255 (observing that the “clear implication” of the statute is
that changing and washing is a principal activity unless otherwise
excluded from coverage by statute).

                                 20
activity to constitute “work.”

                                 III.

        In light of the foregoing analysis, the undisputed facts
established that the donning and doffing activity in this case
constitutes “work” as a matter of law. Because the jury was
erroneously instructed on the definition of “work,” we will
remand to the District Court for further proceedings consistent
with the above analysis.12 Although preliminary or postliminary
work is non-compensable under the Portal-to-Portal Act if the
work is not “‘integral and indispensable’ to [the] ‘principal
activit[ies]’” of a given job, Alvarez, 546 U.S. at 37, we note
that Tyson explicitly withdrew any defense that, if work,
donning or doffing was not integral or indispensable in the joint
pre-trial memorandum. We leave it to the District Court to
determine the preclusive effect, if any, of this withdrawal in any
further proceedings.

         On remand, the District Court will also need to consider
the de minimis doctrine, which provides a limiting principle to
compensation for trivial calculable quantities of work. Tyson
argues that any guidance we may give as to the content of the
doctrine would be merely advisory; we disagree. See Douglas,
50 F.3d at 1228 (“In light of our decision to remand for a new
trial, it is not necessary to address the issue of the jury



       12
            Appellants also challenged the continuous workday
instruction given at trial. The continuous workday is generally
defined as “the period between the commencement and completion
on the same workday of an employee’s principal activity or
activities.” Alvarez, 546 U.S. at 29 (internal quotations and
citations omitted). We believe a correct definition of work would
alleviate any concerns that appellants would have on this point
were there to be a second trial; in any event, the District Court
properly instructed the jury on the continuous workday rule, and
“[n]o litigant has a right to a jury instruction of its choice, or
precisely in the manner and words of its own preference.” Douglas
v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995).

                                 21
instruction regarding the law governing the use of force against
prisoners. Nonetheless, because of the likelihood that this issue
will undoubtedly arise again during the new trial, we will give
directions on the issue to the district court.”); Trans-World Mfg.
Corp. v. Al Nyman & Sons, Inc., 750 F.2d 1552, 1566 (Fed. Cir.
1984) (“Trans-World raises both of those issues in its appeal.
Nyman’s first response is that we should not consider those
issues, on the ground that since the jury did not reach the
question of damages because it concluded that both patents were
invalid, Trans-World is seeking an advisory opinion on an issue
that neither the jury nor the district court decided. Those issues,
however, undoubtedly will arise on the retrial of the question of
damages that will be held.”).

       We therefore proceed to provide some comments on the
de minimis doctrine. In Anderson, the Court explained that
“[t]he workweek contemplated . . . must be computed in light of
the realities of the industrial world. When the matter in issue
concerns only a few seconds or minutes of work beyond the
scheduled working hours, such trifles may be disregarded. Split-
second absurdities are not justified by the actualities of working
conditions or by the actualities of working conditions or by the
policy of the Fair Labor Standards Act. It is only when an
employee is required to give up a substantial measure of his time
and effort that compensable working time is involved.”
Anderson, 328 U.S. at 692.

       The Court of Appeals for the Ninth Circuit has held that,
“in determining whether otherwise compensable time is de
minimis, we will consider (1) the practical administrative
difficulty of recording the additional time; (2) the aggregate
amount of compensable time; and (3) the regularity of the
additional work.” Lindow v. United States, 738 F.2d 1057, 1063
(9th Cir. 1984) (holding that time difficult to calculate, small in
the aggregate, and irregularly performed is de minimis). The
regulation appearing in 29 C.F.R. § 785.47 notes that:

       In recording working time under the Act,
       insubstantial or insignificant periods of time
       beyond the scheduled working hours, which cannot

                                22
       as a practical administrative matter be precisely
       recorded for payroll purposes, may be disregarded.
       The courts have held that such trifles are de
       minimis. (Anderson v. Mt. Clemens Pottery Co.,
       328 U.S. 680 (1946))[.] This rule applies only
       where there are uncertain and indefinite periods of
       time involved of a few seconds or minutes
       duration, and where the failure to count such time
       is due to considerations justified by industrial
       realities. An employer may not arbitrarily fail to
       count as hours worked any part, however small, of
       the employee’s fixed or regular working time or
       practically ascertainable period of time he is
       regularly required to spend on duties assigned to
       him.

        Appellants argue that the de minimis charge that the
District Court gave only instructed the jury to consider whether
the donning/doffing activities were de minimis, and not whether
that time, when aggregated with post-donning/pre-doffing
walking time, was de minimis. App. at 2212-15. We agree that
this is an issue that should be reconsidered on remand. See
Lindow, 738 F.2d at 1063 (“[W]e will consider the size of the
aggregate claim. Courts have granted relief for claims that
might have been minimal on a daily basis but, when aggregated,
amounted to a substantial claim.”); Reich v. New York City
Transit Authority, 45 F.3d 646, 652 (2d Cir. 1995) (same).

       Finally, appellants assert that the District Court should not
have charged the jury that so-called “additional” or “extra”
minutes, which Tyson claimed it gave certain workers some of
the time as non-“work” compensation, was a defense under the
FLSA for the uncompensated time. They argue in particular that
the damages and liability portions of the trial were bifurcated,
and the issue of payment was to be addressed at a later phase of
the proceedings. We agree. It is clear that all of the workers in
the class were not so compensated. To the extent this issue may
arise again on remand, we believe that questions regarding such
payments are more appropriately resolved at the damages stage.



                                23
                              IV.

       For the foregoing reasons, we will reverse and remand
this matter to the District Court for further proceedings
consistent with this opinion.




                              24
