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Monday, September 19, 2005
First Monday: Cases for Oct. 3, 2005

No. 03-1238 IBP v. Alvarez & No. 04-66 Tum v. Barber Foods
Here are two cases about whether employers must pay employees for time that they spend putting on safety gear and walking to their job. The Ninth Circuit says they do. The First Circuit says they don't. An amendment to the Fair Labor Standards Act says employers do not have to pay for time spent going to and from the place where a worker's primary activity takes place, but does not say how we should define what the primary activity is. I think this could go either way, with two superstars arguing: Tom Goldstein on the plaintiff's side of the Tum case and Carter Phillips on the other side of the IBP case. I think that people don't put on 50 lbs of safety equipment for fun, so the employees will win. AFFIRM in IBP and REVERSE in Tum.

Update: On Nov. 8, the Court Affirmed IBP and Reversed (in part) Tum. The opinion is here.

No. 04-0631 Wagnon v. Prarie Band Potawatomi Nation
This case concerns a tribe of native Americans in Kansas who have a casino on their reservation. If I understand the facts correctly, there is one road that goes to the casino, and one gas station (the "Nation Station") on that road. As you might guess the gas station primarily sells gas to casino goers. The tribe imposes a tax on the gas that pays for the road. Well Kansas decided it was going to impose its own tax on fuel distributors, that they were free to pass on to their customers. The tribe argues that the tax should not apply to it because federal indian law preempts state law and because it impinges on the tribe's sovereign immunity. My from the gut prediction is that the Court will REVERSE, just because native Americans really have bad luck at the Court. They have some decisions that say great things for them, but unfortunately courts mostly find ways around actually upholding those great things.