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W.D.N.Y.: Time Spent “Arming Up,” Checking Through Security And “Arming Down” Not Compensable For Security Guards At Nuclear Power Plant
Albrecht v. Wackenhut Corp.
Plaintiffs brought this action alleging violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”) and violations of New York Labor Law (“NYLL”) seeking additional compensation for certain activities that occurred before and after their scheduled work shifts and workdays. Specifically, plaintiffs alleged that Wackenhut violated the FLSA and the NYLL by failing to pay them for time spent arming up and checking through security and arming down at the Ginna facility. The case was before the Court on the parties’ respective motions for summary judgment. Granting Defendant’s motion and denying Plaintiff’s motion, the Court discussed the nature of Plaintiffs’ uncompensated activities deeming them to be preliminary and post-liminary and thus non-compensable.
The Court discussed the nature of the time in dispute:
“B. Arming Up and Reporting to Post Prior to March 1, 2006
The guards report to work in uniform, which consists of blue pants, a blue shirt, boots, a hat, jacket and other equipment. The guards are free to wear their uniforms home and return to work in uniform on their next scheduled workday. Before March 1, 2006 guards were permitted to leave Ginna with most of the equipment issued by Wackenhut, including their gun belts, radio pouches and bandoliers. The only equipment that guards were required to leave on site was their service revolver, which was kept in the armory, and a handheld radio, which was stored in a nearby charging unit. Plaintiffs contend that service revolvers and handheld radios were stored in various locations on the Ginna facility at different relevant time periods.
There is no dispute that the arming up and arming down process prior to March 1, 2006 took place in the room in which the armory was located. According to Wackenhut, after clearing security, the guards were able to go directly to the room in which their weapons and radios were stored to retrieve them before reporting to their assigned post. Plaintiffs claim that upon clearing security, the guards were required to first report to the locker room to obtain ammunition, gun belts, radio pouches and bandoliers, before obtaining their firearms and radios in the armory.
The process of arming up began with a guard identifying the serial number of his or her weapon and would then retrieve the weapon in a clearing barrel from a supervisor in the armory. The guard would then follow a series of instructions from the supervisor concerning the process of loading and holstering his or her weapon. The arming up process was complete when the guard holstered the weapon. The deposition testimony of several plaintiffs confirm that it took thirty seconds to less than a minute from the time when a security guard identified the serial number on his weapon to the time the weapon was holstered. The arming down process was essentially the same process in reverse and was completed in the same amount of time. After retrieving their weapon, guards obtained a handheld radio at a location in the same area as the armory, at which time each signed a log to identify which radio they took. It is undisputed that the arming up and arming down process was routine, relatively effortless and could be completed in a short time frame.
Upon completion of the arming up process and retrieval of the handheld radio, guards then reported to their first assigned post. Based on the deposition testimony, it takes less than thirty seconds to walk from the armory, which is currently located in the guard house, to many of the posts. The remaining posts can be reached by a person walking at a normal pace in one to five minutes. Plaintiffs claim that the amount of time to arm up and arm down depends upon various factors. Further, plaintiffs submitted four affidavits in opposition to Wackenhut’s summary judgment motion alleging that it took them between eight minutes to fifteen minutes to complete pre-shift activities prior to March 1, 2006. However, these alleged time ranges are not consistent with the deposition testimony of various plaintiffs deposed by defendant.
In addition, the affidavits provided by the four guards demonstrate that they included in the time estimates time that they claim they spent engaging in activities that are separate and distinct from arming up and arming down. For instance, the four guards included in the time estimates in their affidavits the time they claim they spent walking from the room in which the armory was located to their assigned posts. Moreover, they included in their estimates the time they allegedly spent engaging in certain activities that occurred before the arming up process started, such as time allegedly spent on occasionally having to wait for the arming up process to begin. They also included in their estimates the time that they allegedly spent on occasionally addressing radio issues or difficulties. These alleged radio issues happen infrequently and take a matter of seconds to address e.g. dealing with radio traffic at the BRAVO alarm station would take no more than five seconds to address.
According to defendant, security guards were not asked to perform any work before the start of their regularly-scheduled shifts. Before March 1, 2006, guards were compensated for all work time beginning with the start of their scheduled shift but guards were not required to arrive on site at any specified time prior to their scheduled shift to be considered on time. Plaintiffs contend that they were required to report to their post 15 minutes before the start of their shift but were not compensated until their shift actually started. Wackenhut argues that plaintiffs did not have to arrive at the site at any particular time prior to the start of their shift to be on time. In fact, prior to March 1, 2006, defendant was aware of many occasions on which guards completed the security clearance process just a minute or two before the start of their scheduled shift and were able to retrieve their weapon and radio and report to their post on time. These guards were not disciplined and were considered to be in compliance with Wackenhut’s policies and expectations.
C. Pre-Shift Briefings That Began in February 2006
On or about February 26, 2006, Wackenhut implemented a pre-shift briefing process for all guards at the Ginna facility. During these briefings, guards are advised about various issues relevant to their position including any incidents that may have occurred in previous shifts, developments in the industry, and/or changes in any policies or procedures by Wackenhut. The pre-shift briefing is held in the Security Building. Guards are able to go directly to the briefing room once they complete the security clearance process in the same building. Since the implementation of these pre-shift briefings, guards report to the briefing room fifteen minutes before the start of their scheduled shifts. For instance, a guard assigned to the 6:30 a.m. to 2:30 p.m. shift must report, in uniform, to the briefing room by 6:15 a.m. At the conclusion of the pre-shift briefing, the security guards report to the armory to retrieve their weapons and then proceeded to their first assigned post. Since on or about February 26, 2006, guards have been compensated from the start of the pre-shift briefings, which occur before the arming up process begins. They continue to be paid through the remainder of the day until the arming down process is completed at the end of their shifts.
Plaintiffs argue that the time spent from the beginning of the pre-shift briefing until the commencement of their scheduled shifts are not calculated towards overtime. Defendant contends that plaintiffs’ assertions are inconsistent with the plaintiffs’ deposition testimony and the terms of the written policy issued at the same time that the shift briefings were implemented. According to defendant, the Wackenhut employee manual for the February 2006 time period provided that guards would be compensated for time spent during the shift briefing and de-gunning process. In addition, the policy stated that this time would be compensated at the guards’ normal base rate for time under forty hours in a week and at the guards’ overtime rate for time over forty hours in a week.”
The Court then determined that Plaintiffs were, as a matter of law, not entitled to be compensated for such activities:
“This case falls under the purview of the 1947 Portal-to-Portal Act, in which Congress provided that employers would not be liable to provide compensation for activities which are “preliminary to or postliminary to” the principal activity or activities which employees are employed to perform. See 29 U.S.C. § 254(a)(2). Applying the Portal-to-Portal Act, the Supreme Court has determined that activities performed before or after an employee’s regular work shift are compensable if they are “an integral and indispensable part of the principal activities for which covered workman are employed.” See Steiner v. Mitchell, 350 U.S. 247, 256 (1956). Moreover, in Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir.2007), the Second Circuit articulated a distinction between the terms “indispensable” and “integral.” While “indispensable” means only “necessary,” the term “integral” adds the requirement that the activity be “essential to completeness … organically linked … [or] composed of constituent parts making a whole.” See id. at 592. Therefore, unless an activity is essential to complete the employee’s task, it is excluded from compensation under the Act. See id.; see also IBP, Inc. v. Alvarez, 546 U.S. 21, 40-41 (2005) (unless an activity is both integral and indispensable to performing the job, it is not a principal activity of the job).
In Gorman, the plaintiffs sought compensation for time spent donning and doffing helmets, safety glasses, and steel-toed boots. The court conceded that such gear might have been indispensable to the employees’ work, in that it was required by the employer or by government regulations, but found that the donning and doffing of such gear was not integral to the employees’ work at Indian Point and accordingly, did not constitute “work time” for purposes of the FLSA. See Gorman, 488 F.3d at 594. Rather, the Court opined that “[t]he donning and doffing of generic protective gear is not rendered integral by being required by the employer or by government regulation.” See id. (citing Reich v. IPP. Inc., 38 F.3d 1123, 1126 (10th Cir.1994) (holding that donning and doffing safety glasses, a pair of ear plugs, a hard hat, and safety shoes “although essential to the job, and required by the employer, are pre-and postliminary activities”).
The Gorman court also contrasted the uncompensated wearing of generic safety gear with the complete changing and showering required by the employer in Steiner. It also contrasted the wearing of specialized gear required for employees who worked in the nuclear containment area, for which those employees were compensated. The court reasoned that procedures for wearing this specialized gear were integral to the act of working in the hazardous environment of the containment area. By contrast, the court found that “the donning and doffing of … generic protective gear [such as a helmet, safety glasses, and steel-toed boots] is not different in kind from ‘changing clothes and showering under normal conditions,’ which under Steiner are not covered by the FLSA.” See Gorman, 488 F.3d at 594. Further, the Gorman court observed that “donning and doffing” of the equipment at issue in that case were “ ‘relatively effortless,’ noncompensable, preliminary tasks.” Id. at 594 (citing Reich v. New York City Transit Auth., 45 F.3d 646, 649 (2d Cir.1995). Accordingly, the Court held that these activities constituted non-compensable preliminary and postliminary tasks for which no pay was required under the FLSA.
Here, the record demonstrates that the arming up process was accomplished with minimal effort and the arming down was not difficult or time-consuming. See Reich, 45 F.3d at 651 (Second Circuit observed that Portal-to-Portal Act amendments exempt such “trivial, non-onerous aspects of preliminary preparation, maintenance and cleanup” from “work time” under the FLSA). There is no dispute that the arming up and arming down process was routine, relatively effortless and could be accomplished in a short period of time. The deposition testimony of plaintiffs confirm that the arming up process took approximately thirty seconds to less than a minute to complete. The arming down process was essentially the same process in reverse and was completed in the same amount of time. Upon completion of the arming up process and retrieval of the handheld radio, guards reported to their first assigned post. Based on the deposition testimony, it takes less than thirty seconds to walk from the armory, which is currently located in the guard house, to many of the posts. The remaining posts can be reached by a person walking at a normal pace in one to five minutes. Further, plaintiffs were not required to arrive on site at any particular time prior to their scheduled shift to be considered on time.
Plaintiffs attempt to establish a question of fact by providing four affidavits contending that it could take up to eight to fifteen minutes to complete the arming up and arming down process prior to March 1, 2006. For instance, in Stacy Janke’s affidavit submitted in opposition to defendant’s motion for summary judgment, he states that “the time required to … report to an assigned post, is approximately twelve (12) to fifteen (15) minutes.” See Janke Aff., ¶ 6. It is well settled, however, that plaintiffs “may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” See Hayes v. New York City Department of Corrections, 85 F.3d 614, 619 (2d Cir.1996) (citations omitted); see also Schratz v. Potter, 2008 WL 5340992 at *6 (W.D.N.Y.2008).
Indeed, “factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” See Hayes, 85 F.3d at 619. Though Stacy and other plaintiffs testified under oath at their deposition, they never claimed that it took twelve to fifteen minutes to complete the arming up or arming down process. Rather, Mr. Janke and other plaintiffs testified that the actual process of arming up could be completed in less than one minute. It is also undisputed that the arming down process involves the same procedure in reverse and was completed in the same time frame. Accordingly, plaintiffs cannot rely on their contradictory affidavits to create an issue of fact on this point. Moreover, a further analysis of the four affidavits submitted by plaintiffs confirms that all four individuals included time in their pre-shift estimates that is not part of the arming up and arming down process. Rather, they included time allegedly spent walking, waiting in line and/or donning and doffing generic equipment or clothing that is distinct from arming up and arming down. None of the time allegedly spent engaging in any of those activities is compensable under Gorman and Second Circuit case law.
Further, plaintiffs’ reliance on the decision in Maciel v. City of Los Angeles, 569 F.Supp2d 1038 (C.D.Calif.2008) is misplaced. The rationale employed by courts such as Bamonte v. City of Mesa, 2008 WL 1746168 (D.Ariz.2008) are more sound and have been adopted by many other courts and the Department of Labor as it pertains to the significance of an employee’s ability to leave work with required equipment. See Bamonte, 2008 WL 1746168 at *5 (observing that “a rule which categorically defines donning and doffing time as noncompensable when an employee has an opportunity to change at home is consistent with the Department of Labor’s “longstanding” interpretation of the FLSA.”) In Bamonte, the court held that time spent changing into and out of police uniforms and other equipment was not compensable because the police officers were allowed to go to the police station in uniform. See id. at *11-12. Here, the evidence reveals that plaintiffs were free to leave the site in their uniforms, with most of the equipment they were issued by Wackenhut, including the radio pouches, gun belts, and bandoliers which the four plaintiffs reference in their affidavit in opposition to the motion for summary judgment.
As a matter of law, the activities for which plaintiffs seek compensation were preliminary and postliminary activities not subject to compensation under the FLSA. To the extent that they were otherwise compensable activities, they are de minimis in nature. Accordingly, defendant is entitled to summary judgment.”
D.Md.: Time Chicken Plant Workers Spent Donning & Doffing PPE Compensable; Plant’s Take Home Policy Is “Illusory”
Perez v. Mountaire Farms, Inc.
This opinion was rendered by the Court following a bench trial where expert and lay testimony was presented by both the employees and the employer. The primary issue in the case, was the oft-litigated issue of whether time the employees spent donning and doffing personal protection equipment (PPE), is compensable under the FLSA (as benefiting the employer), or not. In finding that such time is compensable the Court addressed several arguments presented by the Defendant to the contrary.
“The DOL has defined “work day” as “the period between the commencement and completion on the same work day of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(a), (b). “[T]o the extent that activities engaged in by an employee occurs after the employee commences to perform the first principal activity on a particular work day and before he ceases the performance of the last principal activity on a particular work day,” those activities are not exempted from FLSA and are compensable. Id. Thus, under the “continuous work day” rule, any activity-donning and doffing, walking, waiting, sanitizing-undertaken by the employee after the work day has begun is compensable. See IBP, Inc. v. Alvarez, 546 U.S. at 28-29.
The Supreme Court has held that activities that are “integral and indispensable” to principal activities are themselves principal activities-not pre- or postliminary-and are therefore compensable under the FLSA. Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (“activities performed either before or after the regular work shift, on or off the production line, are compensable … if those activities are an integral and indispensable part of the principal activities”). In my March 9, 2009 Memorandum and Order, I discussed the various approaches adopted by different circuits in defining the types of activities that are “integral and indispensable” to principal activities. In the end, I chose to follow the Ninth Circuit’s two part test: that donning and doffing of unique and non-unique protective gear are “integral and indispensable” if doing so is (1) necessary to the principal work performed and (2) done for the benefit of the employer. See Alvarez, 339 F.3d at 902-03. However, I left for determination at trial the specific question of whether donning and doffing PPE is “integral and indispensable” to the principal work of chicken processing. I find and conclude that it is.
First, donning and doffing is necessary to the principal work of chicken processing. It is undisputed that all employees are required to wear the following items no matter the department in which they work: wear plugs, bump caps, smocks (also called coats), hair/beard nets, and steel toed rubber boots. These items are required by Mountaire company policy, United States Department of Agriculture (“USDA”) sanitary regulations, and Occupational Safety and Health Administration safety requirements (“OSHA”). For example, OSHA requires employees to wear ear plugs to protect the employees’ ears. Different ear plugs have different OSHA ratings and employees are required to wear specific ear plugs depending on which section of the plant they work and how noisy that section is.
Other PPE items are required in order to keep the chickens clean. According to Alan Zlotorynski, a human resources manager at a different Mountaire plant, Mountaire requires employees to wear bump caps not to protect employees from actually bumping their heads, but because bump caps prevent employees’ hairs from falling into the products. The bump caps are not made of the same grade or quality of a helmet that prevents head injuries when worn. The primary purpose of the bump caps is to protect the product. The same may be said for hair and beard nets. In addition, employees must don and doff smocks, aprons, and gloves to safely handle chickens. Employees are not allowed to take smocks, aprons, or gloves into restrooms for sanitary reasons. Employees are likewise prohibited from taking aprons into the cafeteria. Shitwa Perez, an employee in the evisceration, salvage, and debone department, testified that an inspector specifically told her to replace her smocks to prevent contaminating the food. I credit this testimony. Clean smocks are so integral to chicken processing that the company launders the smocks daily and provides them to the employees on racks in easily accessible hallways.
Defense witnesses testified that everyone entering the production floor is required to wear all of these listed PPE items. But, the fact that everyone is required to wear these PPE items does not negate the fact that wearing them is required for chicken processing at Mountaire. Donning and doffing the required PPE are paramount to complying with federal regulations as well as producing safe products. Indeed, donning and doffing is so important to the work done at Mountaire that employees are subject to discipline or termination for failing to comply with donning requirements.
Other PPE that are not per se required by Mountaire are no less necessary for chicken processing. The workers testified during trial that they must wear clean cotton gloves in order to properly do their work. Mountaire does not require employees to wear cotton gloves; however, I find that cotton gloves are necessary to the principal work of chicken processing. Ray Barrientos, for example, worked on the Evisceration department. Workers in this department process chickens that have recently been dipped in scalding water and plucked. When the chickens arrive at his work station, therefore, the chickens are extremely hot and difficult to handle. Barrientos, and others on his line, are required to hang 45 chickens per minute. During cross-examination, Barrientos did admit that he may be able to perform his work without cotton gloves. Without the gloves, however, it would be impossible to hang the chickens properly at the pace required by Mountaire.
Luisa Perez, who worked in the breast debone department, encountered a different problem than Ray Barrientos. The temperature in the debone department was kept at 45 ° F. She had to wear fabric gloves under her mesh gloves in order to keep her hands warm. Moreover, she needed clean gloves to hold the knives safely because the blood and fat from the chickens made the knives extremely slippery. Cold hands make using knives, scissors, and other cutting equipment more dangerous to use. It is extremely clear that the PPE items are necessary to processing chickens properly.
Second, donning and doffing is done for the benefit of Defendant-employers. Michael Tirrell summarized the benefits of donning and doffing well. He testified that employees benefit from donning and doffing the PPE items inasmuch as the PPE items protects employees from workplace hazards. He also testified that Mountaire benefits from the employees’ donning and doffing because the PPE protects the products from contamination, helps keep workers compensation payments down, keeps missed time to a minimum, and shields the company from pain and suffering payments. I find and conclude that Mountaire is the primary beneficiary of the donning and doffing.”
The Court then addressed Defendant’s contention that the time is not compensable, because the employees have the option of taking home their PPE and changing there, rather than at work. Rejecting this argument, the Court stated it believed this was simply an “illusory” argument:
“In May 2006, DOL issued an advisory opinion stating that “if employees have the option and ability to change into the required gear at home, changing into the gear is not a principal activity, even when it takes place at the plant.” DOL Wage & Adv. Mem. No.2006-2 (May 31, 2006).FN1 In Abbe v. City of San Diego, the Southern District of California granted the city’s summary judgment motion because it could find “no evidence that its officers were required by law, policy, or the nature of their work to don and doff their uniform or safety equipment at work.” 2007 WL 4146696 at *7 (S.D.Cal. Nov. 9, 2007). The Northern District of California, on the other hand, concluded that donning and doffing may be compensable even if performed off the employer’s premises because “the location of the donning and doffing activity [should] be only one of the considerations” in determining if an activity is compensable. Lemmon v. City of San Leandro, 538 F.Supp.2d 1200, 1207 (N.D.Cal.2007). The important question is whether employees “actually have a meaningful opportunity to don their protective gear at home, or instead, whether that option is illusory.” Martin v. City of Richmond, 504 F.Supp.2d 766, 775 (N.D.Cal 2007).
The same memorandum includes a footnote which reads, “Since, like donning, obtaining the gear (as opposed to waiting to obtain the gear) ‘is always essential if the worker is to do his job,’ the compensable day starts once the employee has obtained the gear required to be stored on the premises by taking items out of a bin, a locker or another designated storage area.” Defendants would have the court read the phrase “required to be stored on the premises” strictly. They argue that, because PPE items are not required to be kept at the plant, the compensable day does not start when the employee dons PPE. I decline to read the DOL footnote so strictly. I find and conclude that the phrase “required to be stored on the premises” has a more practical meaning. The PPE were required to be stored at the premises because Mountaire gives each employee a locker in which to store all of the PPE and because, in reality, employees keep their PPE in their lockers, thereby making the option to take PPE home, illusory.
Defendants assert that employees have the option of taking home all of their PPE items; thus, donning and doffing cannot be a principal activity per DOL’s advisory opinion. I disagree. This case differs from Abbe in that Mountaire employees are required by law, policy, and the nature of the work to don and doff their PPE at work. More importantly, I find the take home option illusory. Employees are provided with lockers. Any employee who requests a locker receives one. Employers recently expanded the number of employee lockers. If changing at home were a bona fide option, there would be no real need for employee lockers or for Defendants to incur the costs of installing them. While employees are required to clean out their lockers on Fridays, they keep all of their PPE items in the lockers during the week. Dr. Radwin’s videos show employees storing their PPE items in their lockers at the end of the day, rather than taking those items home. As a practical matter, it would be onerous and indeed impractical for employees to take home a host of PPE (ear plugs, bump caps, smocks, aprons, hair/beard nets, and steel toed rubber boots) everyday when they have the option and ability to leave them in their lockers at the plant.
While Tirrell testified that he has seen employees driving around town with all of their PPE on, this particular incidence happens once in a “blue moon.” And it certainly does not happen in the middle of a humid Delaware summer. Furthermore, employees were not allowed to take smocks home prior to July 9, 2006. The normal order of donning is as follows: the smock goes on first, followed by the apron, the arm sleeves, and gloves. The smock is the foundation of the PPE. It must be in place before other gear can be donned. Complete donning for work, therefore, cannot be achieved until the lab coat is donned. So, even if employees were taking their PPE home before July 9, 2006, they could not commence the donning process until after they arrived at the plant.
Defendants emphasize that employees were allowed to take smocks home beginning on July 9, 2006. This fact does not strengthen Defendants’ take home defense. First, it is wholly illogical for employees to take home smocks soiled with chicken blood and fat when the company (1) provides hampers, close to the exits, in which employees may place the soiled smocks, (2) launders the smocks free of charge, and (3) provides clean smocks, arranged neatly on racks that are easily accessible at the plant hallways, at the beginning of the shifts. Second, it is plausible that employees take home clean smocks at the end of their shifts, before they go home; however, no witnesses have testified that this is a normal occurrence. To the contrary, Defendants’ expert Dr. Davis testified during deposition and at trial that he did not see anyone taking a smock home at the end of the day in the two separate weeks in which he conducted his study at Millsboro. The workers testified during trial that they all pick up smocks at the beginning of their shifts. Indeed, Dr. Radwin’s videos also confirm that the majority of employees pick up smocks at the beginning of their shifts. Zlotorynski also testified to this effect during depositions.
Third, even if employees do take clean smocks home at the end of the day, employees keep the rest of their PPE in their lockers so they would still need to report to the plant in advance of the start of line time to finish donning all of their PPE. It is quite clear that Mountaire employees did not “actually have a meaningful opportunity to don their protective gear at home.” Martin, 504 F.Supp.2d at 775. The take home option is illusory.
Defendants’ motivation for enacting the smock take home policy also bolsters the conclusion that the take home option is illusory. Tirrell’s email to various company personnel indicated that the smock take-home policy was designed to “effectively eliminate the donning and doffing issue.” This same email also indicated that Mountaire personnel “should have begun moving the hand wash sinks out to the dept areas to delay the ‘first principal activity’ until the line started.” Clearly, the decisions to institute the smock take home policy and moving the sinks closer to the production floor were motivated by Mountaire’s desire to circumvent DOL’s persistent directives that Mountaire must compensate employees for donning and doffing time. The same email thread, however, highlights the fact that the take home option is illusory. Replying to Tirrell’s email, Everett Brown, a Mountaire employee, wrote, “At this point we have talked with each employee and they are signing their name saying they understand they have the option to take the coat or not take the coat. Most are not taking the coat and don’t want it the night before. However as with all their other equipment they have the option.” This exchange elucidates Defendants’ position: that the important thing is that employees have a take home option, and not that the option is meaningful.”