The U.S. Department of Labor (DOL) and the courts have long struggled with the issue of what constitutes compensable “work” under the Fair Labor Standards Act (FLSA). Congress responded to the controversy in 1947 by enacting the Portal-to-Portal Act, which exempted employers from liability for claims based on two categories of work-related activities: walking on the employer’s premises to and from the location of the employee’s “principal activity or activities,” and activities that are “preliminary or postliminary” to “said principal activity.”
The DOL has issued interpretive bulletins (IBs) regarding what constitutes compensable preliminary and postliminary activity under the FLSA. Under these IBs, checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks are not normally compensable. Of particular concern is that once some type of work activity begins, under a concept known as the “continuous workday” rule, any activity 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 exception, and is compensable. This is why waiting to don protective gear at the beginning of the day is generally considered non-compensable time, but waiting to doff the protective gear and doffing the protective gear at the end of the work day is normally deemed compensable.
These issues were confronted again in the Dec. 9, 2014 ruling of the U.S. Supreme Court in the case of Integrity Staffing Solutions Inc. v. Busk. This case involved a fact pattern in which the employer required its employees to undergo a security screening before leaving the warehouse at the end of each day, during which employees removed items such as wallets, keys and belts from their persons and passed through metal detectors. The screenings were conducted to prevent employee theft and the employees alleged this time was compensable because it was done solely for the benefit of the employer.
A lower court in Integrity Staffing Solutions found that the post-shift activities involving security screenings were compensable as being integral and indispensable to the employees’ principal activities because the post-shift activities were necessary to the principal work performed and done for the benefit of the employer. The Supreme Court reversed, stating that: “[A]n activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packing them for shipment and Integrity Staffing could have eliminated the screenings altogether without impairing the employee’s ability to complete their work.” The court also noted that the screenings were not the “principal activity or activities which [the] employee is employed to performed,” and that the “integral and indispensable test is tied to the productive work that the employee is employed to perform.” It is insufficient to constitute compensable work merely because an employer requires an activity.
Editor’s note: The Integrity Staffing Solutions case is an important one and surprisingly was a unanimous opinion, although there was a concurring opinion. Lower courts in the future will focus on how the Supreme Court described an “integral and indispensable” activity in determining whether future cases involving preliminary and postliminary activities are compensable. Employers will argue that emphasis in the opinion on the “productive work that the employee is employed to perform” will affect numerous donning and doffing cases that have been and are being litigated. Plaintiffs will say the opinion has no effect on donning and doffing law, but merely reaffirms existing precedents.
Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at firstname.lastname@example.org.