Compensable Work Comes Home to Roost

December 2007 New Jersey Lawyer, Volume 16, Number 53

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Reprinted with the permission of New Jersey Lawyer© December 31, 2007

What is work? When does it begin? These seem like questions that almost anyone could immediately answer. It seems reasonable that our work begins when we perform those activities we're primarily paid to do, but under wage-and-hour law, it is not that simple.

What about activities performed before work starts in the morning, or work that has to be done after the final bell? What about employees working unusual shifts, such as part-time workers who may not come in when traditional shifts begin, or workers who use technology to do some work activities from home? Depending on a number of factors, these activities may or may not constitute compensable working time. Indeed, the focus of numerous class actions is an allegation that such preliminary and postliminary activities are "work."

When it comes to the issue of what is compensable working time, reasonable minds can differ. Some may argue — and a number of cases have agreed — that work time begins when there is some degree, however small, of physical or mental exertion. The better reasoned view, however — and that recently adopted by the 3rd U.S. Circuit Court of Appeals — is whether the activity at issue is integral or indispensable to the performance of the employee's primary duty. These "donning and doffing" cases have utilized this "connection" test — a recent example being De Asencio v. Tyson Foods, Inc., 500 F.3d 361. This article will highlight that case and suggest parameters for employers to understand when they must pay employees for particular activities or, put differently, to know what actually constitutes work.

Compensable or not?

Tyson has helped clarify the meaning of work by placing the emphasis on the activity's connection to the primary job, not how much sweat is expended. The facts in the case are simple — workers putting on their uniforms to prepare to "process" (presumably kill) chickens in a chicken-processing plant. From this simple activity came a serious challenge in the form of a class action under the Fair Labor Standards Act (FLSA), together with the possibility of large-dollar liability. The employees claimed they were denied payment for the time spent putting on and taking off their uniform, a total 13.3 minutes per shift. The company argued that donning and doffing the clothing was not work as defined by FLSA, and even if it were work, it should be considered de minimis and therefore not compensable. The disagreement centered around when the work day actually began. Ironically, FLSA, the federal law that regulates compensation for work, never defines that term, either in the law or in numerous regulations implementing it.

The Tyson court first set out to define work. Early Supreme Court cases defined it broadly, finding work was performed by a slight exertion and even where no exertion was made, but where the employee merely "waited for something to happen." Then, in Anderson v. Mt. Clemens Pottery, 328 US 680, the Supreme Court held that the term "work week" included the time employees spent walking from time clocks near a factory entrance to their work stations. In response, Congress passed the Portal-to-Portal Act, which "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 the principal activity.

The Supreme Court explained, however, the Portal-to- Portal Act was not intended to change the court's earlier definitions of "work." In IBP v. Alvarez, the Supreme Court held that the time employees spent walking from changing areas (where they had donned required protective gear) to production areas, and time spent waiting to remove the gear at the end of the work day was compensable under FLSA. Other courts have defined work as something that does not require exertion, but rather, some activity that was "necessarily and primarily for the benefit of the employer."

Notwithstanding the conclusion that the activity is deemed work, the provisions of the Portal-to-Portal Act or the de minimis doctrine might not mandate compensation be paid. The Portal-to-Portal Act limited compensable work by eliminating "preliminary/postliminary activities. However, the Supreme Court has ruled that some preliminary and postliminary activities could be compensable if those activities were "integral and indispensable" to the principal activities. The dilemma is that the employer must decide what is integral and indispensable. See, e.g., Brock v. Mercy Hospital, No. 84-1309-T(M), (holding that time spent by hospital employees donning and doffing work uniforms on-premises was compensable under FLSA, where the employees were required to be in uniform at least five minutes before their shift).

Job-specific gear

Alvarez provides a good example of how the preliminary act of putting on gear can be integral to the job's activity. In that case, slaughterhouse employees responsible for "knifewielding" activities were required to wear a unique "chainmail" type of gear. The fact that the employees spent time donning and doffing gear specific to their type of work was important to the court. Similarly, in Mitchell v. King Packing Co., workers in a meatpacking plant were entitled to compensation for time spent sharpening their knives, as this was considered an integral part of their work activities in slaughtering cows. This is an interpretation of the Portal-to-Portal Act that has likely changed over time. An early case under the statute found that where employees normally engaged in slaughterhouse work, the time spent sharpening their knives before and after their shifts was deemed non-compensable. See Tobin v. King Packing Co., 107 F.Supp. 369.

The de minimis doctrine limits the scope of compensable work by eliminating tasks performed for only a few seconds or minutes beyond normal scheduled work hours as a "trifle" and therefore non-compensable. Interestingly, however, no court has actually given a cutoff time or a particular number of minutes or seconds that will prove the work was trifling. The 10th U.S. Circuit Court of Appeals in Metzler v. IBP, No. 96-3258, held the work week must be measured in light of "the realities of the industrial world." That phrase, though, did not seem specific enough to provide proper guidance to an employer.

Three factors

Another court, Lindow v. United States, 738 F.2d 1057, has set forth three factors to consider in when to apply the de minimis rule, but none of them delineate any specific time guidelines. This not only has led to debate about what is work and what is not, but has caused one court to note the slippery slope potential of finding donning and doffing to be work. In the 10th Circuit's Reich v. IBP, 38 F.3d 1123, the court noted that "[r]equiring employees to show up at their work stations with such standard equipment is no different from having a baseball player show up in uniform, a business person 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." This decision, finding donning and doffing to be de minimis, has since been rejected. In concluding, the Tyson court reiterated the view of work that was rejected in Reich, i.e., that preliminary and postliminary activities remain compensable so long as they are an integral and indispensable part of the principal activities of the job or, alternatively, whether the activity is "closely related" to the job's performance.

With video conferencing, e-mail and other wireless devices, employees can be almost anywhere while doing their work. Although the concept of a work shift has not completely died, as technological innovation informs the nature of employment relationships, it likely will be increasingly harder to ascertain when a shift ends or begins. With the geometric increase in class actions, large dollars are at stake should an employer not be cognizant of the activities that constitute work. As Tyson teaches, the focus must be on the connection/ linkage between the activity and the primary job.

Some might argue the FLSA and Portal-to-Portal Act equate to nothing more than anachronistic relics of the Great Depression and of an assembly-line workforce that no longer exists — images from dusty film reels portraying jobs that have disappeared in the midst of the "knowledge economy." Yet, regardless of whether we have transitioned almost entirely from a widgets to a digits economy, the issue of determining what preliminary/postliminary and other tangential activities engaged in by employees are work under federal and state law will remain incumbent upon the employer with allegedly incorrect determinations providing the fodder for class actions.