Federal Appellate Courts Decide Compensability of Pre- and Post-Shift Activities

June 13, 2007

Two recent decisions from federal appellate courts help define what is – and what is not – compensable work under federal wage and hour law, and could signify a favorable trend for employers. 

In Gorman v. The Consolidated Edison Corp., the employees at a nuclear power facility filed a collective action complaint against operators of the facility.  The complaint alleged the employees spent about 18-30 minutes every day passing through several security checks, including x-ray machines, vehicle checks, card swipes, and a handprint analysis, donning and doffing generic safety gear (e.g., helmet, goggles, steel-toed shoes), and walking from the area where the safety gear was located to their work areas.  The district court in New York held that the time was not compensable work time, and dismissed the claims.  The Second Circuit Court of Appeals affirmed the dismissal.

The Fair Labor Standards Act, as amended by the Portal-to-Portal Act, excludes from compensable time any pre- and post-shift activities, including certain waiting, walking, and traveling, that are not “integral and indispensable” to an employee’s principal duties.  This exclusion was reiterated in the recent U.S. Supreme Court decision IBP v. Alvarez, which held the time spent waiting in line to obtain specialized protective gear – almost like body armor – and the time spent walking after taking off the gear were not compensable.  However, the Supreme Court held that the time employees spent actually changing into and out of the specialized protective gear was compensable, and all time in between those activities also was compensable under the continuous workday rule.

The Second Circuit in Gorman followed the holding in IBP and further defined compensable activities.  The Court rejected the employees’ claims that because the generic gear and the security measures were required for the job, they should be compensated.  While these activities may have been indispensable, or “necessary in the sense that they are required and serve essential purposes,” they were not “integral to principal work activities,” so they were not compensable.  The donning and doffing of the generic safety gear was no different than ordinary clothes-changing, ruled the Court.  And the length of time spent traversing the security procedures did not make the time compensable.  According to the Court, “security measures that are rigorous and that lengthen the trip to the job-site do not thereby become principal activities.” 

On the same day the Gorman decision was issued, the Eleventh Circuit Court of Appeals issued a decision on a similar claim.  In Bonilla v. Baker Concrete Construction, Inc., the Eleventh Circuit affirmed summary judgment for an employer who had contracted to perform work at an airport.  Following an analysis similar to that in Gorman, the Court held that employees should not be compensated for time spent traveling or being cleared by security before arriving at their actual worksite within the airport.  The Court in Bonilla stated “the ‘integral and indispensable’ test is not a but-for test of causal necessity. . . . [I]f mere causal necessity was sufficient to constitute a compensable activity, all commuting would be compensable because it is a practical necessity for all workers to travel from their homes to their jobs.” 

These cases are significant for several reasons.  First, they are among the first to address whether the time spent complying with rigorous security procedures constitutes compensable work – and both held it was not.  Second, many commentators and plaintiffs’ attorneys suspected that courts would expand the scope of what is compensable work after IBP.  To the contrary, these cases may signify that courts are not willing to open the flood gates as anticipated.

The Gorman decision is also important because it emphasizes what many (including plaintiffs’ attorneys) often ignore – that a compensable activity must be both “integral” and “indispensable” to the employees’ principal job duties.  In other words, it is not enough that the activity is indispensable, or “necessary.”  It must also be integral, or closely related to the principal duties and so essential that the principal duties could not be performed without the activity.  The Gorman decision also stated that the activities at issue are “modern paradigms” of the types of activities that have long been non-compensable under the Portal-to-Portal Act.  The Gorman Court’s willingness to modernize the exclusionary principals of the Portal-to-Portal Act may prompt other courts to exclude from compensation some realities of the modern workplace.

Employers should remember that whether certain activities are compensable often depends on a careful analysis of all of the circumstances surrounding the activities.   If you have questions about the impact of these cases at your workplace, or any other wage and hour questions, contact Raymond D. NeuschGeorge E. YundJames D. CockrumJeffrey N. LindemannEugene J. Droder IIIJeffrey S. ShoskinD. Patton PelfreyC. Laurence Woods IIIM. Clark SpodenJohn T. Lovett, or William F. Becker.

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