Category Archives: Portal-To-Portal Act

W.D.Pa.: Security Guards Not Entitled to Be Paid For Pre- and Postliminary Work or Time Spent Cleaning Uniforms, As Required By Employer; Complaint Dismissed

Schwartz v. Victory Sec. Agency, LP

This case was before the court on defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim. The plaintiffs, security guards employed by defendant, alleged that the defendant has failed to properly compensate them for pre- and post- shift work that defendant required them to perform as part of their jobs. In its decision, the court agreed, largely citing in apposite case law in support of its decision.

First, the court held that time spent performing pre- and post-liminary duties required by defendant, for which no compensation was received, was precluded by the portal-to-portal act. Accepting the facts underlying this claim, as required on the motion to dismiss the court explained:

“Throughout the relevant time period, Defendant ex-pected Plaintiffs “to be available to work before commencement of their shift, during their promised meal break and after completion of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs per-formed pre-shift work including: receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing logs and event reports, collecting schedules, meeting with supervisors and providing pass down instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15–30 minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id. at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant’s agents regularly encouraged, instructed, suffered and per-mitted” Plaintiffs to perform this work and observed them doing so. Id. at ¶¶ 22, 31. Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they performed because Defendant’s timekeeping and pay practices improperly placed the burden on Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for such work. Id. at ¶ 24, 34.”

Notwithstanding these detailed allegations, the court concluded “Plaintiffs do not detail how Defendant’s failed to compensate them for pre- and post-shift work” and dismissed the claim (without prejudice) on this basis.

Addressing plaintiffs’ second claim, regarding defendant’s failure to pay them for time (1 to 2 hours per week) they were required to spend cleaning their uniforms, in order to meet defendant’s dress code requirements, the court found this claim equally unavailing. After a brief discussion of recent case law regarding the definition of tasks that are integral to work (so as to make them compensible), the court summarily concluded that “[h]ere… while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensible to Plaintiffs’ principal activity, providing security.” In so doing, the court ignored the obvious parallels of the uniform maintenance to other cases where courts found that similar activities were integral (i.e. feeding, training and walking of K-9 dogs by police officers while “off-duty”).  Given the fact that the defendant required the plaintiffs to wear these uniforms, and that they maintain the uniforms in a presentable fashion it is unclear how the court reached its conclusion in this regard.

It will be interesting to see whether the plaintiffs will appeal this decision, which seems to be out of line with prevailing authority outside of the Third Circuit regarding these issues.

Click Schwartz v. Victory Sec. Agency, LP to read the entire Decision.

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E.D.Pa.: Time Spent Going Through Security And Walking From Security To Perform Production Work Not Compensable; Excluded By Portal-to-Portal Act

Sleiman v. DHL Express

This case was before the Court on Defendant’s Motion to Dismiss, based on its claims that certain activities that were the subject of Plaintiff’s “off-the-clock” claims were not compensable as a matter of law. In granting Defendant’s Motion, the Court addressed each of the the three types of activity in turn and found all three excluded by the Portal-to-Portal Act as pre- and/or postliminary in nature and not compensable “work” activity.

Defendant DHL Express operates a mail sorting facility in Breinigsville, Pennsylvania, and employs about 400 sorters, yard jockeys, and others. Plaintiff is a mail worker and seeks to represent Mail Workers who have been employed by Defendant during the past three years. It was undisputed that Defendant has paid Plaintiff and prospective class members for the time that they engage in actual production activities. Pursuant to Defendant’s internal policy, Class Members are randomly selected on a daily basis to proceed through a security screening before clocking in and after clocking out. Class Members are not compensated for time spent waiting for the security screening process or for time spent clearing the security process. Class Members are also not compensated for the time it takes for them to walk from the entrance to the time clock at Defendant’s facility and the time it takes to walk from the time clock to the exit.

Plaintiff brought a two-count complaint, alleging violations of the FLSA and WPCL. Plaintiff alleged that failure to compensate Class Members for the following three activities was a violation of these statutes: (1) waiting in line to go through security screening before entering and exiting Defendant’s facility; (2) participating in the security screening itself; and (3) walking between the security screening area and time clocks where Mail Workers clock in and out. Plaintiff seeks an award of damages in the form of reimbursement for unpaid wages, costs and attorneys fees, and other equitable relief.

Citing to several cases, as well as the Portal-to-Portal Act itself, the Court granted Defendant’s Motion to Dismiss.

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