Supreme Court to Hear Cases on Compensable Time, Inspectors' Liability

The Supreme Court this fall will hear two cases whose outcomes could have far-reaching implications in the environmental health and safety world.

In one case, United States vs. Olson et al., the court will determine if federal safety inspectors are liable for injuries suffered by workers if the inspectors fail to follow agency policies and procedures.

Arizona mine workers Joseph Olson and Javier Vargas, according to court documents, were permanently disabled when a 9-ton slab of earth fell from the ceiling of the mine in which they were working. The original lawsuit filed by Vargas, Olson and Olson's wife, Monica, against MSHA contended that the agency was liable for their injuries due to MSHA's failure to respond to prior complaints regarding safety hazards at the mine.

The U.S. District Court of Arizona ruled in favor of MSHA. The 9th U.S. Circuit Court of Appeals in San Francisco reversed the ruling in March 2004.

The question now posed to the Supreme Court is "whether the liability of the United States under the Federal Tort Claims Act with respect to safety inspections is the same as that of private individuals under like circumstances, or, as the 9th Circuit held, the same as that of state and municipal entities under like circumstances."

Case Asks Whether Workers Should Be Paid for Walking, Waiting Time

The other EHS case before the Supreme Court this fall will ask the court to decide whether workers should be paid for time spent waiting at and walking to and from safety gear distribution stations.

It is a consolidation of two related cases that reached the 1st and 9th circuit courts of appeals, respectively -- Abdela Tum et al. vs. Barber Foods Inc. and IBP Inc. vs. Alvarez et al. In both cases, the appeals courts ruled that workers should be paid for the time spent "donning" (putting on) and "doffing" (taking off) required safety and sanitary gear.

In IBP Inc. vs. Alvarez et al., the 9th U.S. Circuit Court of Appeals in Seattle ruled in 2003 that South Dakota-based meat producer IBP must pay its employees for the time it takes them to change into required safety/sanitary equipment and gear. Workers at IBP's slaughter and processing plant in Pasco, Wash., filed the original class action lawsuit against IBP in1999.

Similarly, in Abdela Tum vs. Barber Foods Inc., the 1st Circuit agreed with a district court's conclusion that employees of the Portland, Maine-based poultry processor should be paid for donning and doffing required safety gear, including lab coats, earplugs, hairnets, safety glasses, steel-toed boots, aprons and vinyl gloves.

At the core of the legal discussion in the Tum vs. Barber Foods case was whether donning and doffing required safety gear comprise "an integral and indispensable part of employees' principal activities," since the Portal-to-Portal Act stipulates that workers cannot be paid for pre-shift and post-shift activities unless they are integral and indispensable. The district court and appeals court agreed that donning and doffing time is an integral and indispensable part of workers' jobs.

The 1st Circuit, however, ruled that time spent waiting in line at and walking to and from safety equipment stations is not compensable, citing the aforementioned Portal-to-Portal act exclusions.

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