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D.S.D.: Special Detail Exemption Recognized By 29 U.S.C. § 207(p)(1) Of The FLSA Applies To Exclude Certain Time Worked, Because Firefighters Were On Firefighting Detail Solely At Their Own Option, During Off Duty Hours, And The State And The City Are Separate And Independent Employers
Specht v. City of Sioux Falls
This case was before the Court on Defendant’s Motion for Summary Judgment. The specific issue is the City’s affirmative defense that the firefighters were exempt from the Fair Labor Standards Act. 29 U.S.C. § 207(p)(1) establishes a special detail exemption so that hours worked on special detail are not combined with the regular hours for calculating overtime compensation.
The Court cited the following facts as relevant to the issue at bar:
“Plaintiffs are firefighters employed by the City of Sioux Falls in the Fire Rescue Department (SFFR). During July and August of 2006, all of the Plaintiffs were deployed to assist in fighting wildfires. In July of 2006, Ricky Larsen, who was the Chief of SFFR received a call from the South Dakota state fire dispatch requesting assistance in battling wildfires. There was a list of SFFR firefighters who were wildland firefighter certified. Each firefighter has the right to accept or deny when offered an opportunity at deployment. Reimbursements to the City by the State for the firefighters’ compensation were made pursuant to a contract between the City and the State. The normal schedule called for the firefighters to work 204 hours during a 27 day pay period. Typically a firefighter’s deployment for wildland firefighting is not more than 14 days. There was a concern that deployed firefighters would be paid less than if they had stayed in Sioux Falls and worked the normal 204 hours work schedule. SFFR agreed to pay the difference between 204 hours and the hours actually worked during a 27 day period in which a firefighter was deployed if a firefighter’s hours during the 27 day period totaled less than 204.”
Laying out the relevant law regarding the s0-called “Special Detail Exemption” the Court stated:
“29 U.S.C. § 207(p)(1) provides:
If an individual who is employed by a State, political subdivision of a State, or an interstate governmental agency in fire protection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely at such individual’s option, agrees to be employed on a special detail by a separate or independent employer in fire protection, law enforcement, or related activities, the hours such individual was employed by such separate and independent employer shall be excluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation under this section if the public agency-
(A) requires that its employees engaged in fire protection, law enforcement, or security activities be hired by a separate and independent employer to perform the special detail,
(B) facilitates the employment of such employees by a separate and independent employer, or
(C) otherwise affects the condition of employment of such employees by a separate and independent employer.
Code of Federal Regulations.
29 C.F.R. § 553.227 provides:
(a) Section 7(p)(1) makes special provision for fire protection and law enforcement employees of public agencies who, at their own option, perform special duty work in fire protection, law enforcement or related activities for a separate and independent employer (public or private) during their off-duty hours. The hours of work for the separate and independent employer are not combined with the hours worked for the primary public agency employer for purposes of overtime compensation.
(b) Section 7(p)(1) applies to such outside employment provided (1) The special detail work is performed solely at the employee’s option, and (2) the two employers are in fact separate and independent.
(c) Whether two employers are, in fact, separate and independent can only be determined on a case-by-case basis.
(d) The primary employer may facilitate the employment or affect the conditions of employment of such employees. For example, a police department may maintain a roster of officers who wish to perform such work. The department may also select the officers for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses. The department may require that the separate and independent employer pay the fee for such services directly to the department, and establish procedures for the officers to receive their pay for the special details through the agency’s payroll system. Finally, the department may require that the officers observe their normal standards of conduct during such details and take disciplinary action against those who fail to do so.
(e) Section 7(p)(1) applies to special details even where a State law or local ordinance requires that such work be performed and that only law enforcement or fire protection employees of a public agency in the same jurisdiction perform the work. For example, a city ordinance may require the presence of city police officers at a convention center during concerts or sports events. If the officers perform such work at their own option, the hours of work need not be combined with the hours of work for their primary employer in computing overtime compensation.
(f) The principles in paragraphs (d) and (e) of this section with respect to special details of public agency fire protection and law enforcement employees under section 7(p)(1) are exceptions to the usual rules on joint employment set forth in part 791 of this title.
(g) Where an employee is directed by the public agency to perform work for a second employer, section 7(p)(1) does not apply. Thus, assignments of police officers outside of their normal work hours to perform crowd control at a parade, where the assignments are not solely at the option of the officers, would not qualify as special details subject to this exception. This would be true even if the parade organizers reimburse the public agency for providing such services.
(h) Section 7(p)(1) does not prevent a public agency from prohibiting or restricting outside employment by its employees.
Department of Labor Letter Rulings.
This § 207(p)(1) exemption has been addressed in two opinion letter rulings issued by the United States Department of Labor on November 19, 1992 and in a third opinion letter ruling issued December 31, 2007. Ginsburg et al., Fair Labor Standards Handbook, App. III, pp. 186-87 & 457-58 (1998). In the second1992 opinion letter the Department of Labor opined that county sheriff’s deputies who are employed by a village to perform law enforcement services for the village under a proposed contract between the county and the village fall under § 207(p)(1) so that the hours worked by the deputies for both employers are not combined for FLSA overtime compensation purposes. “Section 207(p)(1) applies to such outside employment provided (1) the special detail work is performed solely at the employee’s option, and (2) the two employers are in fact separate and independent.” The Department of Labor cited 29 C . F.R. § 553.227.
In contrast, the first November 19, 1992, opinion letter opined that § 207(p)(1) did not apply to a paramedic who worked for a county’s emergency medical services department and who also worked as a part time communications supervisor in the county’s sheriff department so that the hours worked in both county departments should be combined for overtime purposes. The departments were not separate and independent employers. The employee worked for a single employer, the county, in different departments. These two opinion letters illustrate the principle of § 207(p)(1) which is described as follows in the first letter ruling:
Section 7(p)(1) makes special provision for fire protection and law enforcement employees who, at their own option, perform activities for a separate and independent (emphasis in original) employer(public or private) during their off-duty hours. The hours of work for the separate and independent employer are not combined with the hours worked for the primary public agency employer for the purposes fo overtime compensation. See § 553.227 of the regulations. Id.
In the 2007 opinion letter the Department of Labor opined that the city police department and a non-profit group which operates the city convention center are separate and independent employers so that § 207(p)(1) applies when police officers perform security duties at the convention center during their off hours. “[I]t is our opinion that the City Police Department would not be obligated to include the hours worked by police officers on special assignment to the Authority in calculating and paying overtime due them.”
The language of 29 U.S.C. § 207(p)(1), 29 C.F.R. § 553.227, and the Department of Labor is plain, i.e. if the firefighter has the option to accept or reject the assignment and if the second employer is a separate and independent employer, then the primary employer does not count the hours the firefighter spends on the special detail for the second employer in the calculation to determine the firefighter’s entitlement to overtime.
Case precedent is consistent with these legal principles. Jackson v. City of San Antonio, 2006 WL 2548545, *4-*7, (W.D.Tex.2006) (Section 7(p)(1) special duty exemption bars police officers’ overtime claims against the City for hours worked for separate and independent employers during off duty hours); Nolan v.. City of Chicago, 125 F.Supp.2d 324, 335-339, (N.C.Ill.2000) (Section 7(p)(1) sets forth a two part test: if the assignment is solely at the employees option and the employers are in fact separate and independent the special detail exemption applies and the hours worked for the separate employer are not combined for purposes of assessing overtime compensation); Cox v. Town of Puughkeepsie, 209 F.Supp.2d 319, 324-327 ((S.D. N.Y 2002) (Section 7(p)(1) does not apply to voluntary work performed by police officers because the town and the town police department are a single employer); Baltimore County FOP Lodge 4 v. Baltimore County, 565 F.Supp.2d 672, 676-679, (D. Maryland 2008) (Section 7(p)(1) special detail exemption cannot be decided as a matter of law on summary judgment motion because there are questions of fact to be resolved by a jury on both the voluntary and separate employer prongs); Murphy v. Town of Natick, 515 F.Supp.2d 153, 157-158, (D. Mass 2007) (Section 7(p)(1) special detail exemption does not apply because the Town is not a separate and independent entity from any of its constituent departments); Barajas v. Unified Government of Wyandotte County/Kansas City, Kansas, 87 F.Supp.2d 1201, 1205-1209, (D.Kansas 2000) (Section 7(p)(1) special detail exemption cannot be decided as a matter of law even though parties agree the assignments are solely at the employees option because there are questions of fact about the Unified Government and the Housing Authority as separate and independent employers).
The Court then analyzed the relevant factors, concluding that all elements of the exemption were met here.
“Solely at the Firefighter’s Own Option.
Specht described the procedure for calling the list for volunteers (Doc. 24, Ex. 13, Specht depo. p. 63-64):
… [Y]ou have to go to the first person on the list that has the fewest number of hours…. I will use SF 29 as an example …; under “Remarks,” it says, “No answer.”…. [T]hey can leave an answer (sic) on the answering machine, and they must wait a minimum of-I believe it’s five minutes-before they can call the next person so that that person could look at their messages and call in and say: “Yes, I want to work.” “No, I don’t.” …. By contract and by policy, you can either accept the overtime or reject it, unless they declare an emergency. Or, once they’ve been all the way through the list, then they can call-if they get a hold of you the second time, then they can require you to take the overtime. (emphasis added).
Specht also testified that all the firefighters who responded in 2006 were accepting the offered “overtime.” Whether it is called volunteering or called overtime, the firefighters accepted. They had the option to say, “no, I won’t go,” or “yes” on the first time the list was called. Plaintiff argues that the wildfire fighting deployment was not voluntary because the firefighter could be assigned to go on deployment if there were not enough who accepted the first time the list was called. This argument is academic and not relevant. There were enough firefighters who accepted the first time the list was called. None of these plaintiffs was assigned to accept the deployment against his will. The list was not called a second time. The notes on the calling sheets reflect that several said “yes” to this wildfire fighting deployment and several said “no” (Doc. 36). There were ten “yes.” There were ten “no.” There were seven who said “after a certain date.”
The plaintiffs were on this wildland fire fighting project solely at their own option. The first prong of the section 7(p)(1) special detail test existed.
Separate and Independent Employer.
The other employer is the State. It cannot reasonably be argued or concluded that the City and the State are the same employer. The Department of Labor and the case law have identified the factors to test for separate and independent employers:
(1) whether the employers have separate payroll/personnel systems;
(2) whether the employers have separate retirement systems;
(3) whether the employers have separate budgets and funding authorities;
(4) whether the employers are separate legal entities with the power to sue and to be sued;
(5) whether the employers dealt with each other at arms length concerning the employment of any individuals in question;
(6) how they are treated under state law;
(7) whether one employer controls the appointment of the officers of the other entity.
The responses to these questions are so obvious there is little or nothing in the record about them. Judicial notice is taken of the facts not in the record, but which are nonetheless relevant to the evaluation of these factors. Federal Rules of Evidence 201(b), (c) & (f). It is known that under state law the State has its own payroll, personnel, and retirement system. It is known that under city ordinance the City has its own payroll, personnel, and retirement system. The State and the City have separate budgets and different funding sources. (Both rely significantly on sales taxes-the State sales tax is 4% and the City sales tax is 2%. A purchaser in Sioux Falls pays a total of 6%, but the 6% is the total of two separate tax levies.) The State and the City are separate legal entities. Both have the power to sue and be sued, e.g. this lawsuit where the City is a defendant and the State is not a party. The State and the City dealt at arms length-see the written contract between them formed and filed under State statute, SDCL 1-24. The City and the State are treated as separate entities under state law. Neither the State nor the City control the appointment of officers of the other.
The City and the State are separate and independent employers. The second prong of the section 7(p)(1) special detail test existed.
During Off Duty Hours.
The usual scenario for the application of 7(p)(1) is when the fireman or policeman works for a second employer during off duty hours, e.g. at a concert or a sporting event. The Code of Federal Regulations and the Department of Labor letter rulings use the words “during their off duty hours.” The present plaintiffs are not in that situation because they are geographically so far from their home duty station that they cannot return home after a duty shift. Consequently, at the remote locations they work both the equivalent of their normal duty shift and the equivalent of their normal off duty hours. Since the present firefighters work both their normal on duty hours and their normal off duty hours at a remote location fighting wildfires, the use of the words “off duty hours” in the Code of Federal Regulations raises an issue about the applicability of the special detail exemption to the plaintiffs. The question is answered by 29 U.S.C. § 207(p)(1) itself. The statute does not limit the special detail exemption to off duty hours. The statute provides that a firefighter employed by a city “in fire protection … who, solely at the firefighter’s option agrees to be employed on a special detail by a separate or independent employer in fire protection … the hours such individual was employed by such separate and independent employer shall be excluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation ….“ (emphasis added) The statute which created the special detail exemption did not limit the special detail exemption to off duty hours. The statute plainly says the hours employed by the separate and independent employer shall be excluded when calculating overtime compensation
Under the FLSA the second employer must pay overtime if the employee works more than 40 hours during a workweek and some exemption does not apply. 29 U.S.C. § 207(a)(1). To illustrate, if the firefighter works three 16 hour days fighting a wildfire during a workweek, then the second employer pays overtime, i.e. 48 hours worked compared to 40 hours equals 8 hours overtime. The way it works is this: if FLSA overtime is worked on the special wildfire fighting detail, the State pays the FLSA overtime. If a firefighter’s special detail hours and other, normal hours in Sioux Falls added together during a 27 day work cycle total fewer than 204 hours, the City pays the difference so the firefighter is assured at least 204 hours for the pay cycle in which a wildfire fighting deployment occurs. The special detail hours are not combined with the normal shift hours to calculate overtime compensation per 29 U.S .C. § 207(p)(1).”
Holding that all the relevant elements of the exemption were present here, the Court granted Defendant’s Motion for Summary Judgment finding that the special detail exemption recognized by 29 U.S.C. § 207(p)(1) of the Fair Labor Standards Act applied.
9th Cir.: While Home Data Transmissions Taking 15 Minutes Are Not De Minimis, Because Workers Are Completely Relieved Of Duty Between Finishing Work And Performing The Transmissions, They Are Not Part Of The Continuous Workday
Rutti v. Lojack Corp., Inc.
The district court granted Lojack summary judgment, holding that Rutti’s commute was not compensable as a matter of law and that the preliminary and postliminary activities were not compensable because they either were not integral to Rutti’s principal activities or consumed a de minimis amount of time. On appeal, the Ninth Circuit affirmed the district court’s denial of compensation under federal law for Rutti’s commute and for his preliminary activities. However, they vacated the district court’s grant of summary judgment on Rutti’s claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions. It is compensability of the postliminary portable data transmissions that is discussed here.
Discussing the claim it revived, the Court stated, “Lojack requires that Rutti, after he completes his last job for the day and goes ‘off-the-clock,’ return home and send a PDT transmission to Lojack using a modem provided by Lojack. The transmissions have to be made every day as they provide Lojack with information concerning all the jobs its technicians perform during the day. The transmissions appear to be ‘part of the regular work of the employees in the ordinary course of business,’ and are ‘necessary to the business and [are] performed by the employees, primarily for the benefit of the employer, in the ordinary course of that business.’ Dunlop, 527 F.2d at 401. Accordingly, at least on summary judgment, the district court could not determine that this activity was not integral to the Rutti’s principal activities.
Lojack might still be entitled to summary judgment, if it could be determined that this postliminary activity was clearly de minimis. The evidence before the district court, however, does not compel such a conclusion. The fact that several technicians testified that they spent no more than five to ten minutes a night on PDT transmissions might appear to give rise to a presumption that an activity is de minimis, see Lindow, 738 F.2d at 1062, but such a conclusion is neither factually nor legally compelling.
It is not factually compelling because, although it may take only five to ten minutes to initiate and send the PDT transmission, the record shows that the employee is required to come back and check to see that the transmission was successful, and if not, send it again. There is also evidence in the record that there are frequent transmission failures. Accordingly, the record does not compel a finding that the daily transmission of the record of the day’s jobs takes less than ten minutes.
Furthermore, we have not adopted a ten or fifteen minute de minimis rule. Although we noted in Lindow, that “most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable,” we went on to hold that “[t]here is no precise amount of time that may be denied compensation as de minimis ” and that “[n]o rigid rule can be applied with mathematical certainty.” 738 F.2d at 1062. The panel went on to set forth a three-prong standard, which would have been unnecessary if the panel had intended to adopt a ten or fifteen minute rule.
The application of this three-prong test to the facts in this case do not compel a conclusion that the PDT transmissions are de minimis. The first prong, “the practical administrative difficulty of recording the additional time,” id. at 1063, is closely balanced in this case. Certainly, it is difficult to determine exactly how much time each technician spends daily on the PDT transmissions. It is also not clear what activities should be covered. Is the time when the technician comes back to check to see if the transmission was successful included? When a technician is waiting until ten minutes after the hour, is he “engaged to wait” or “waiting to be engaged?” See Owens, 971 F.2d at 350. Although it may be difficult to determine the actual time a technician takes to complete the PDT transmissions, it may be possible to reasonably determine or estimate the average time. For example, there is evidence in the record that Lojack had agreed to pay one technician an extra 15 minutes a day to cover the time spent on PDT transmissions. In sum, the inherent difficulty of recording the actual time spent on a particular PDT transmission does not necessarily bar a determination that the PDT transmissions are not de minimis. See Reich v. Monfort, Inc., 144 F.3d 1329, 1334 (10th Cir.1998) (holding that the time it took meat packers to don and shed their employer-mandated clothing was not de minimis even though “the practical difficulty of supervising and recording the additional time weighs in favor of finding it noncompensable”).
The other two prongs, “the aggregate amount of compensable time,” and “the regularity of the additional work,” Lindow, 738 F.2d at 1063, favor Rutti. Rutti asserts that the transmissions take about 15 minutes a day. This is over an hour a week. For many employees, this is a significant amount of time and money. Also, the transmissions must be made at the end of every work day, and appear to be a requirement of a technician’s employment. This suggests that the transmission “are performed as part of the regular work of the employees in the ordinary course of business,” Dunlop, 527 F.2d at 401, and accordingly, unless the amount of time approaches what the Supreme Court termed “split-second absurdities,” the technician should be compensated. See Anderson, 328 U.S. at 692.
Our review of the record suggests that the PDT transmissions are an integral part of Rutti’s principal activities and that there are material issues of fact as to whether the PDT transmissions are de minimis. Accordingly, the grant of summary judgment in favor of Lojack on Rutti’s claim for the transmissions must be vacated. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir.1999) (holding that in reviewing a grant of summary judgment, we do “not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial”). This does not mean that on remand, Lojack may not be able to make a persuasive factual showing for summary judgment under the standard clarified in this opinion. We, however, decline to make such a decision in the first instance.”
The Court then turned to Plaintiff-Appellant’s argument that the compensability of the work necessarily made postliminary commute time compensable under the “continuous workday” rule. Rejecting this argument, the Court explained:
“Finally, Rutti argues that under the continuous workday doctrine, because his work begins and ends at home, he is entitled to compensation for his travel time, citing Dooley v. Liberty Mutual Ins. Co., 307 F.Supp.2d 234 (D.Mass.2004). In Dooley, automobile damage appraisers sought compensation for the time they spent traveling from their offices in their homes to locations where they inspected damaged cars. Id. at 239. The district court first determined that the work the appraisers undertook at home constituted principal activities. Id. at 242. The court then determined that compensation was not prohibited by the Portal-to-Portal Act, and concluded that those appraisers who could show that they performed work at home before or after their daily appraisals were entitled to compensation. Id. at 249.
Even were we to adopt the continuous workday doctrine set forth in Dooley, Rutti would not be entitled to compensation for his travel time to and from the job sites. We have already determined that Rutti’s preliminary activities that are not related to his commute are either not principal activities or are de minimis. Accordingly, his situation is not analogous to the situation in Dooley. See 307 F.Supp.2d at 245 (“The first and last trip of the day for these appraisers is not a commute in the ordinary sense of the word-it is a trip between their office, where their administrative work is performed, and an off-site location.”).
Our determination that Rutti’s postliminary activity, the PDT transmission, is integrally related to Rutti’s principal activities might support the extension of his work day through his travel back to his residence, were it not for 29 C.F.R. § 785.16. This regulation provides that “[p]eriods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.” Lojack allows a technician to make the transmissions at any time between 7:00 p.m. and 7:00 a.m. Thus, from the moment a technician completes his last installation of the day, he “is completely relieved from duty.” His only restriction is that sometime during the night he must complete the PDT transmission. Because he has hours, not minutes, in which to complete this task, the intervening time is “long enough to enable him to use the time effectively for his own purpose.” See Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1413 (5th Cir.1990) (holding that waiting time “greater than forty-five minutes are not compensable because Plaintiffs were not required to remain on Defendant’s premises during such periods and could use such periods effectively for their own purposes”). Rutti has not shown that the district court erred in determining that neither his preliminary nor postliminary activities extended his workday under the continuous workday doctrine.”
M.D.Tenn.: Even If Time Spent Donning And Doffing A Uniform Is Non-Compensable Under § 203(o), It Might Still Start The Workday Under § 254(a) And The Continuous Workday Rule
Arnold v. Schreiber Foods, Inc.
Before the court was the Motion for Summary Judgment filed by defendant Schreiber Foods, Inc. The Court granted the defendant’s motion in part and denied in part. Of interest, while the Court determined certain time donning and doffing clothes was properly excluded from Plaintiffs’ compensable time under § 203(o), it held that such time spent donning and doffing clothes may still constitute the first activity integral to the Plaintiffs’ principle activities and start the so-called continuous workday, requiring Defendant to compensate Plaintiffs for all time spent after donning such clothes.
In discussing the applicability of § 203(0), to exclude time Plaintiffs spent “changing clothes,” the Court explained that, “[t]he defendant’s plant is unionized, and the United Food and Commercial Workers Union (“UFCW”) is the exclusive bargaining agent for all hourly employees. In September 2004, Schreiber and the UFCW negotiated a new collective-bargaining agreement. One of the UFCW’s proposals was for Schreiber to compensate employees for time spent donning and doffing uniforms at the beginning and end of the workday. After further negotiation, this proposal was withdrawn, and it was not included in the final agreement. The same thing happened when the two sides negotiated a new agreement in 2008.”
The Court next addressed Plaintiff’s argument that “because their workday begins when they don their uniforms and ends when they doff them, post-donning and pre-doffing ‘travel and waiting time’ is compensable” explaining that:
“Under the continuous workday rule, the workday begins at the commencement of the employee’s “principal activities,” which include activities that are an “ ‘integral and indispensable part of the principal activities.’ ” IBP, 546 U.S. at 30 (quoting Steiner, 350 U.S. at 252-53). The factors relevant to determining whether an activity is integral and indispensable are (1) whether the activity is required by the employer, (2) whether the activity is necessary to the employee’s principal activities, and (3) whether the benefit of the activity inures primarily to the employer. Jordan v. IBP, Inc., 542 F.Supp.2d. 790, 808 (M.D.Tenn.2008) (citing Alvarez, 339 F.3d at 902-03;Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344 (11th Cir.2007)). “The changing of clothes may be considered integral and indispensable to an employee’s principal activities ‘where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.’ ” Id. (quoting Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir.2004)).
Here, it is at least a question of fact whether the act of donning and doffing uniforms is integral and indispensable to the plaintiffs’ job. It is undisputed that Schreiber requires its employees to wear clean uniforms, as mandated by Tennessee state regulations. See Tenn. Dep’t of Agric. Rule 0080-3-3-.04(5) (requiring that dairy plant employees who engage in the “manufacturing, packaging, or handling dairy products” wear “[c]lean white or light-colored washable outer garments”). Employees are required to don the uniforms at Schreiber’s plant, and the benefit of the sanitary uniforms to Schreiber is obvious-it allows the company to create uncontaminated food products. Numerous cases involving similar circumstances have found that donning and doffing uniforms can be an integral and indispensable activity. E . g., Jordan, 542 F.Supp.2d at 810 (finding that it was integral and indispensable for meat processing plant employees to don and doff safety and sanitary gear); Johnson v. Koch Foods, Inc., No. 2:07-CV-51, 2009 U.S. Dist. LEXIS 106058, at *28-30 (E.D.Tenn. Nov. 13, 2009) (finding a question of fact as to whether donning and doffing safety and sanitary gear was integral and indispensable for chicken processing plant employees); Gatewood v. Koch Foods of Miss., LLC, 569 F.Supp.2d 687, 696-98 (S.D.Miss.2008) (same). A reasonable jury could find that, under the continuous workday rule, the plaintiffs’ workday starts when they don their uniforms and ends when they doff them.
‘[D]uring a continuous workday, any walking time 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 [§ 254(a) ], and as a result is covered by the FLSA .’ IBP, 546 U.S. at 37. Each day, Schreiber employees spend time walking and waiting (1) after donning their uniforms but before clocking in, and (2) after clocking out but before doffing their uniforms. Disregarding § 203(o), and assuming that donning and doffing is integral and indispensable, this walking and waiting time is compensable.
This raises two questions. The first is whether § 203(o) affects the compensability of the plaintiffs’ walking and waiting time. Courts are split on this issue. Some courts have held that when donning and doffing “is excluded from hours worked under § 203(o), [post-donning and pre-doffing] walking time [does] not follow or precede a principal work activity, and therefore is not compensable.” Hudson v. Butterball, LLC, No. 08-5071-CV-SW-RED, 2009 U.S. Dist. LEXIS 104649, at *1 1 (W.D.Mo. Oct. 14, 2009); see also Sisk v. Sara Lee Corp., 590 F.Supp.2d 1001, 1011 (W.D.Tenn.2008) (“[O]nce an activity has been deemed a section 3(o) activity, it cannot be considered a principal activity.”) This accords with the Department of Labor’s current view that “activities covered by section 3(o) cannot be considered principal activities and do not start the workday.” U.S. Dep’t of Labor, Wage & Hour Div. Advisory Op. Ltr. No. FLSA2007-10.
A greater number of courts, however, have held that determining what constitutes a “principal activity” and determining what constitutes “changing clothes” are separate inquiries. Even if time spent donning a uniform is non-compensable under § 203(o), it still might start the workday, making subsequent activities compensable under § 254(a) and the continuous workday rule. See Sandifer, 2009 U.S. Dist. LEXIS 96715 at *40 (“The court can’t conclude as a matter of law that the non-compensability … under [§ 203(o) ] excludes consideration of whether, pursuant to [§ 254(a) ], those activities are an integral and indispensable part of the employees’ principal activities….”); Andrako v. United States Steel Corp., 632 F.Supp.2d 398, 412-13 (W.D.Pa.2009) (“Section 203(o) relates to the compensability of time spent donning, doffing, and washing in the collective-bargaining process. It does not render such time any more or less integral or indispensable to an employee’s job.”); Johnson, 2009 U.S. Dist. LEXIS 106058 at *32 (“[I]f the donning, doffing, and washing excluded by § 203(o) are determined by the trier of fact to be integral and indispensable, those activities could commence the workday.”); Gatewood, 569 F.Supp.2d at 702 (“Although the statute precludes recovery for time spent washing and ‘changing clothes,’ it does not affect the fact that these activities could be the first ‘integral and indispensable’ act that triggers the start of the continuous workday rule for subsequent activities….”); Figas v. Horsehead Corp., No. 06-1344, 2008 U.S. Dist. LEXIS 87199, at *66-67 (W.D.Pa. Sept. 3, 2008) (“The Court is not convinced that § 203(o) changes the ‘principal’ nature of donning and doffing activities, or that ‘principal’ activities somehow become ‘preliminary’ or ‘postliminary’ under the Portal Act simply because they are rendered noncompensable by a collective-bargaining agreement in accordance with § 203(o).”).
The court agrees that this is the best way to reconcile the application of § 203(o) with Supreme Court precedent. In IBP, the Supreme Court made it clear that the continuous workday starts upon the employee’s first principal activity. 546 U.S. at 29, 37. Logically, whether an activity counts as “changing clothes” under § 203(o) does not necessarily affect whether it is a principal activity. One court found it odd that the uncompensated act of changing clothes might convert an employee’s subsequent, otherwise-non-compensable activity into compensable activity. Sisk, 590 F.Supp.2d at 1011. But this oddity diminishes as the period of the subsequent activity grows longer. For example, if an employer required employees to don uniforms in a company locker room and then spend 30 minutes traveling to a work site, it would not seem “illogical,” id., to require the employer to pay for the travel time. The court finds that § 203(o) does not bar the plaintiffs from receiving compensation for post-donning and pre-doffing activities.
The second question is whether the plaintiffs’ walking and waiting time is noncompensable because it is de minimis. “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.” Mt. Clemens Pottery, 328 U.S. at 692.
Courts look to three factors in deciding whether otherwise compensable time is de minimis: “1) the practical administrative difficulty of recording the additional time; 2) the size of the claim in the aggregate; and 3) whether ‘the claimants performed the work on a regular basis.’ “ Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir.2001) (quoting ( Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984)). Although there is no rigid mathematical rule, “[m]ost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Lindow, 738 F.2d at 1062;see also Von Friewalde, 339 Fed. Appx. at 454. “The burden is on the employer to show that the time consumed by the activity is de minimis.” Gilmer v. Alameda-Contra Costa Transit Dist., No. C 08-05186, 2010 U.S. Dist. LEXIS 3405, at *24 (N.D.Cal. Jan. 15, 2010) (citing Rutti v. Lojack Corp., Inc., 578 F.3d 1084, 1095 n .11 (2009)).
As explained earlier, § 203(o) covers the plaintiffs’ clothes-changing activities through the time that they retrieve and don their hairnets, beard nets, and earplugs. According to the plaintiffs’ declarations, “[o]nce the Workers retrieve their hairnets, beard nets (if applicable), and ear plugs, the Workers clock-in.” (E.g., Docket No. 42, Ex. 1 ¶ 12). The hairnet, beard net, and earplug dispensers are located approximately 40 feet from the time clocks. (Docket No. 36, Ex. 1.) Although it seems unlikely that this journey takes a significant amount of time, it is possible that employees are forced to wait for some period of time before clocking in. The defendant has not presented evidence directly addressing this matter, so it has not met its burden of showing that the walking and waiting time is de minimis. Therefore, the court cannot dismiss this aspect of the plaintiffs’ claim at this stage.”
Not discussed here, the Court denied Defendant’s Motion to the extent they sought a finding that time Plaintiffs spent sanitizing their boots should be excluded.
5th Cir.: Notwithstanding The Language of § 203(o), Actual Bargaining Is Not Necessary In Order To Find That A “Custom or Practice” Exists Under § 203(o); Pattern Of Non-Compensation Sufficient
Allen v. McWane Inc.
This collective action under the Fair Labor Standards Act (“FLSA”), on behalf of hourly employees of McWane, Inc., sought payment for pre-and post-shift time spent donning and doffing protective gear. The district court granted summary judgment on the basis that at each plant there existed a custom or practice of not compensating pre- or post- shift time spent putting on and taking off protective gear. Despite the clear language of the statute, the Fifth Circuit affirmed, holding that absent any evidence that the parties had ever actually discussed or agreed during collective bargaining, that such time would not be compensable, any employer who has consistently failed to compensate employees for otherwise compensable work time may utilize the limited exception of § 203(o), thus barring employees’ claims seeking payment for such time.
In reaching its conclusion, the Court dismissed Plaintiff’s arguments based on the plain reading of § 203(o), stating, “Allen argues that here the facts do not establish a ‘custom or practice under a bona fide collective-bargaining agreement’ that would make changing time non-compensable. Allen claims that compensation for the pre- and post-shift changing time is a pre-existing right under the FLSA, subject to exclusion only if it has been affirmatively bargained away in CBA negotiations; i.e., negotiation of whether to pay for pre- and post-shift changing time must be shown before the court may conclude that there was a custom or practice as provided in § 203(o). According to Allen, there has been no acquiescence or waiver here because the union representatives did not have knowledge of the right to compensation for this pre- and post-shift changing time, nor any knowledge of or acquiescence to a policy of nonpayment for that time.
This court addressed a related issue in Bejil: whether employees had a right to compensation for changing time where the union and the employer had discussed that very question during CBA negotiations, but the CBA ultimately remained silent on the matter. 269 F.3d at 480. We concluded that such silence in the CBA, after the parties negotiated over the matter, resulted in a “custom or practice” of not compensating the employees for the changing time, and therefore § 203(o) barred claims for back wages for such time. Id. Here, unlike in Bejil, there was no discussion of whether McWane should compensate the Allen plaintiffs for such clothes changing time.
The Third and Eleventh Circuits have considered the specific question of whether § 203(o) requires the employees and employer to have discussed the issue of compensation for pre- and post-shift changing time, where the CBA is silent on the issue, in order to find that a custom or practice of nonpayment existed pursuant to a CBA. The Third and Eleventh Circuits concluded that it was not necessary for the issue to have been raised in negotiations. Anderson v. Cagle’s, Inc., 488 F.3d 945, 958-59 (11th Cir.2007); Turner v. City of Philadelphia, 262 F.3d 222, 226 (3d Cir.2001).
Turner presented the following uncontested facts: (1) Philadelphia had not compensated corrections officers for uniform change time for over 30 years; (2) every CBA between Philadelphia and the officers had been silent as to compensation for change time; (3) the union president proposed at labor management meetings with Philadelphia’s Labor Relations Administrator that change time be made compensable, but the union did not make this request in formal CBA negotiations; (4) the union did, however, ask for and receive a uniform maintenance allowance; and (5) the union never filed a grievance or demanded arbitration based on the non-compensability of change time. Turner, 262 F.3d at 225.
The Turner plaintiffs made an argument similar to the one articulated by Allen, that “a ‘custom or practice’ of non-compensability cannot come into being unless (1) the issue of compensability is specifically raised in formal collective bargaining negotiations, and then (2) dropped by the negotiators.” Id. at 226. Rejecting this approach, the Third Circuit held that the plaintiffs and their union had acquiesced to the municipal government’s thirty-year policy of not compensating for changing time. Id. at 227. The court explained:
We think that plaintiffs interpret the phrase “custom or practice under a bona fide collective-bargaining agreement” too narrowly, placing undue emphasis on the clause “under a bona fide collective-bargaining agreement” while virtually reading the clause “custom or practice” out of § 203(o). In essence, plaintiffs construe “custom or practice under a bona fide collective-bargaining agreement” as “custom or practice established through formal collective bargaining negotiations.” To the contrary, we view the phrase as simply restating the well-established principle of labor law that a particular custom or practice can become an implied term of a labor agreement through a prolonged period of acquiescence. Id. at 226. The Turner court also rejected the argument that the plaintiffs had an antecedent right to payment under the FLSA such that they could not acquiesce to non-compensation without the issue being negotiated, noting that § 203(o) itself defines what work time is encompassed by that right to payment. Id. at 226-27.
In Anderson, the employer had not compensated the employees for time spent donning and doffing protective gear for approximately ten years. 488 F.3d at 958. Additionally, the court assumed for purposes of its decision that every CBA during the relevant time period had been silent as to compensation for changing time, and assumed that the parties had never discussed the policy. Id. at 958. The Anderson court followed Turner, also rejecting the argument that a custom or practice under § 203(o) cannot exist unless the parties negotiated about the non-compensation policy. Id. at 958-59. “Relying again on a common sense understanding of the statute’s language, we believe that a policy concerning compensation … for clothes changing, written or unwritten, in force or effect at the time a CBA was executed satisfies § 203(o)‘s requirement of a ‘custom or practice under a bona fide’ CBA.” Id. “Absence of negotiations cannot in this instance equate to ignorance of the policy. Rather, it demonstrates acquiescence to it.” Id. at 959.
The Eleventh Circuit noted that the issue in Anderson was not controlled by the Fifth Circuit’s decision in Hoover v. Wyandotte Chemicals Corporation, 455 F.2d 387 (5th Cir.1972). In Hoover, another action to recover overtime pay under the FLSA, this court held that employees were not entitled to additional compensation for the extra eight to ten minutes of clothes changing time that they requested during collective bargaining negotiations, but which was not incorporated into the executed CBA. Id. at 388. The custom and practice of the employer for approximately fifteen years had been to pay for fifteen minutes of changing time. During the most recent CBA negotiations, pay for 23-25 minutes of time had been requested but not adopted. Hoover held that the request did not change the custom or practice, which was to pay only for fifteen minutes of changing time. Id. at 389. Although the employer had agreed to pay for changing time, where the employees raised the issue during CBA negotiations but there was no change in practice by the employer or change to the CBA on the issue, the relevant custom of non-payment for clothes changing time over fifteen minutes remained unaltered.
Allen both criticizes the reasoning of Turner and Anderson and tries to distinguish them. Allen observes that in Anderson the plaintiffs did not contend that they lacked notice of the relevant compensation policy, whereas here the employees and their union representatives were unaware of the potential for compensation under the FLSA. 488 F.3d at 959. However, neither Turner nor Anderson address the employees’ awareness of the law, much less find it to be a controlling factor in their holding. Anderson merely observed that the plaintiffs were aware that the company had a policy of not paying for pre- and post-shift clothes changing time. Id. Similar facts were present in Turner. 262 F.3d at 225. Both courts concluded that silence by the employees and their union as to the non-compensability of this time when the CBAs were executed meant that a custom or practice of nonpayment was established pursuant to a CBA, and thus the time was not to be calculated as “hours worked” under § 203(o).
Allen relies heavily on the reasoning employed by Kassa v. Kerry, Inc., 487 F.Supp.2d 1063, 1071 (D.Minn.2007). In Kassa, the defendant moved for summary judgment based on § 203(o). The court voiced its agreement with Turner, and determined that § 203(o) may apply even where non-payment for changing time was never raised in negotiations. The court then identified three elements as essential to determine the existence of a “custom or practice” under § 203(o): time, knowledge, and acquiescence. Id. at 1070-71 (relying on Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 154 (1969)). Kassa assigned the burden to the defendant to show that “its policy of non-compensation for clothes-changing time lasted for a sufficiently long time, with sufficient knowledge and acquiescence by [the] employees, that the policy became an implicit term-a ‘custom or practice’-under the CBA.” Id. at 1071. In Kassa, the record established that the non-payment by defendant had occurred for six years and the union had never complained about non-payment when executing the CBA. Id. The district court found this insufficient as a matter of law to establish a custom or practice, and denied summary judgment.
Allen also relies on the Supreme Court’s statement in Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981), that “FLSA rights cannot be abridged by contract or otherwise waived….” Barrentine addressed whether employees at a union-organized plant operating under a CBA could sue their employer for violations of the minimum wage provisions of the FLSA. The CBA in Barrentine required the employees to submit the claim to a grievance committee; when they did so, the committee rejected their claims. The Court held that the right to sue for the violation of the FLSA could not be abridged or waived. Id. at 740. There is a significant distinction between the minimum wage provision at issue in Barrentine and the application of § 203(o) in the instant case: the FLSA rights at issue in Barrentine are independent of the collective bargaining process. Id. at 745. By contrast, under § 203(o) the right to be paid for pre- or post-shift changing time may be abridged by contract-a bona fide CBA. See also Livadas v. Bradshaw, 512 U.S. 107, 131-32 (1994) (addressing question of meaningful bargaining under the National Labor Relations Act, referring to § 203(o) of the FLSA as an example of a “narrowly drawn opt-out provision,” and noting employees have full protection of the minium standard “absent any agreement for something different”).
We are persuaded by the reasoning of the Third and Eleventh Circuits, and join them in holding that even when negotiations never included the issue of non-compensation for changing time, a policy of non-compensation for changing time that has been in effect for a prolonged period of time, and that was in effect at the time a CBA was executed, satisfies § 203(o) ‘s requirement of “a custom or practice under a bona fide” CBA. See Anderson, 488 F.3d at 958-59 (policy of non-compensation had been in place for at least ten years); Turner, 262 F.3d at 226 (policy of non-compensation had been in place for thirty years). In such instances, regardless of whether the parties negotiated regarding compensation for changing time, acquiescence of the employees may be inferred. By contrast, where there have been no relevant negotiations and the facts do not demonstrate that a policy of non-compensation for changing time has been in effect for a prolonged period of time, other evidence of knowledge and acquiescence by the employees will be required. See Gatewood v. Koch Foods of Miss., 569 F.Supp.2d 687, 698-700 (S.D.Miss.2008) (holding that even in the absence of a long-standing tradition of non-compensation or negotiations for compensation of time spent changing clothes, “when employees and union representatives are conclusively aware of the facts surrounding compensation policies for changing clothes at the beginning and end of each workday, and reach an agreement under a CBA that does not compensate employees for the time, a ‘practice’ exists under the CBA sufficient to invoke the § 203(o) defense”).
Thus, as long as there was a company policy of non-compensation for time spent changing for a prolonged period of time-allowing the court to infer that the union had knowledge of and acquiesced to the employer’s policy-and a CBA existed, the parties need not have explicitly discussed such compensation when negotiating the CBA. McWane “only need prove that the parties had a ‘custom or practice’ of non-compensation under the agreement.” Bejil, 269 F.3d at 479. It is undisputed that McWane has never compensated its employees for changing time, going as far back as 1965. After more than forty years of non-compensation, we may safely infer that McWane’s employees had knowledge of and acquiesced to the policy of non-compensation. Therefore, we conclude that McWane has demonstrated a “custom” of non-compensation for changing time.”
Interestingly, the Court noted that the parties had stipulated that the time spent donning and doffing personal protective equipment was synonymous with “changing clothes” and thus potentially waivable, creating the narrow issue before the Court. Inasmuch as there are recent decisions from around the country falling on both sides of this issue (i.e. some finding such time not to constitute “changing clothes”) the Court’s holding may have limited application going forward, because if the disputed time was not time spent “changing clothes” 203(O) would have no applicability.
4th Cir.: Because Donning and Doffing of Protective Clothing Constitutes “Changing Clothes,” Compensability of Such Time is Waivable, Under § 203(o), By Collective Bargaining Agreement
Sepulveda v. Allen Family Foods
Deciding an issue that has divided courts across the country, the 4th Circuit held that, because the donning and doffing of personal protective equipment (PPE) constitutes “changing clothes,” the right to be compensated for such time may be collectively bargained away in a Collective Bargaining Agreement (CBA).
“Under the Fair Labor Standards Act, 29 U.S.C. § 201 seq.bargaining to exclude “any time spent in changing clothes. . . at the beginning or end of each workday” from compensable work time. § 203(o). In this case, we are asked to determine whether the donning and doffing of protective gear at a poultry processing plant constitutes “changing clothes” within the meaning of Section 203(o). We conclude that it does. Consequently, the employer and union here may—as they currently have—exclude donning and doffing from compensable work time.”
E.D.Ky.: Time Spent Attending AA Meetings Not Compensable; Although Required By Employer, Attendance At Meetings Not Primarily For Employer’s Benefit
Todd v. Lexington Fayette Urban County Government
This case was before the Court on Defendant’s Motion for Summary Judgment. The Defendant, who required Plaintiff to attend Alcoholic’s Anonymous (AA) meetings during off-duty time claimed that time spent attending such meetings was not compensable. Agreeing with Defendant and granting it summary judgment, the Court held that although required as a condition of continued employment, because the meetings primarily benefited Plaintiff, the employee, rather than Defendant, his employer, such time was not compensable under the FLSA or Kentucky wage and hour laws.
The Court found the following facts relevant to its determination:
“Todd is an employee of the LFUCG and works as a police officer for its Division of Police (“the police department”). (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 3). On March 1, 2006, while Todd was off-duty and at home, he consumed alcohol and an unknown quantity of Ambien sleeping pills and blacked out. (Id. at 5). Sometime thereafter, Todd’s wife came home, discovered his condition and called 911. (Id. at 5-6). The LFUCG police department responded and an ambulance transported Todd to the University of Kentucky Hospital where he stayed for five days. (Id.). As a result of the combined effects of the alcohol and sleeping pills, Todd has no recollection of the events leading up to his hospitalization. (Id.).
While hospitalized, Todd met with Police Chaplain Welch to discuss, among other things, his need for time off to receive alcohol treatment. (Id.) After his discharge from the hospital, Todd met with his supervisors and requested time off to attend a private alcohol treatment program. (Id. at 7). This request was granted and Todd enrolled a treatment program at the Ridge Behavioral Systems facility in Lexington, Kentucky. (Id. at 9). He successfully completed the sixteen day treatment program on March 30, 2006 and was “released to return to work with no restrictions.” (Rec.18, Attach.2). During the interim, Todd was removed from his duties as a patrol officer and was reassigned to the Bureau of Administrative Services. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 10).
As a result of the hospitalization, LFUCG required Todd to undergo a “fit for duty” evaluation which was conducted by Dr. Robert Elliott, a psychiatrist. (Id. at 11-12). Upon completing the evaluation, Dr. Elliott determined that Todd was fit to return to full time duty without restrictions subject to the following conditions: (1) that Todd attend three Alcoholics Anonymous meetings (“AA meetings”) per week and provide evidence of his attendance every month by having a sponsor sign a monthly report; (2) that Todd should submit to random urine tests for drugs and alcohol twice per month for the first three months upon returning to full time duty and monthly tests thereafter if he was doing well; (3) that Todd should abstain from consuming any alcohol including over the counter medications containing alcohol; (4) that Todd was to continue being monitored by a board certified psychiatrist; and (5) that Todd should consult with his physician and psychiatrist about getting off the prescription drugs that he was taking. (Rec.18, Attach.1, p. 6-7).
After the “fit for duty” evaluation was complete, Todd met with his supervisors and representatives from LFUCG’s Human Resources Office to discuss Dr. Elliott’s findings and his future with the police department. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 20-21). During the meeting, Michael Allen, the Director of Human Resources discussed each of Dr. Elliott’s recommendations with Todd and asked whether he agreed to abide by them. (Rec. 18, Attach. 5, Letter from Kevin Sutton). Todd agreed to follow Dr. Elliott’s recommendations and understood that “his continued employment as an officer with the … [LFUCG] Division of Police … [was] contingent upon the adherence to these recommendations for the duration of his career with this government.” (Rec. 18, Attach. 4, LFUCG letter). Todd then returned to his full time duties with the police department. (Id.). However, it was understood that “any violation of these [Dr. Elliott’s] recommendations would result in his termination through the Alcohol and Drug Policy.” (Rec. 17, Deposition of Ronnie Bastin, Ex. 1, p. 14); (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 22-23).
Although the record is not entirely clear, it appears that Todd was required to comply with the majority of Dr. Elliott’s recommendations outside of his normal forty hour work week and at his own expense. Police Chief Bastin testified that Todd was not permitted to attend the required AA meetings during his regular working hours. (Rec. 17, Deposition of Ronnie Bastin, p. 6). However, he testified that Todd probably would have been permitted to attend the required psychiatric appointments during regular working hours. (Id. at 7). Todd also appears to have borne the costs associated with his psychiatric evaluations. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 33-34).”
Finding the time in dispute not to be compensable, the Court stated:
“Todd argues that the FLSA and Kentucky law require LFUCG to compensate him for time spent outside his normal working hours attending AA meetings and psychiatric evaluations. He claims that they were required as a condition of his employment.
Section 207 of the FLSA states that: Except as otherwise provided in this section, no employer shall employ any of his employees … for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). The FLSA defines the term “employ” to include “to suffer or permit to work” but does not define what “work” is. 29 U.S.C. § 203(g). The Supreme Court initially interpreted the FLSA in Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, and explained that its provisions were “necessarily indicative of a Congressional intention to guarantee either regular or overtime compensation for all actual work or employment.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 88 L.Ed. 949, 64 S. Ct 698 (1944). The Court defined “work” to mean “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Muscoda, 321 U.S. at 598. The Supreme Court has since indicated that even work performed while off duty can qualify as work and may entitle an employee to compensation under the FLSA. See Steiner v. Mitchell, 350 U.S. 247, 256, 100 L.Ed. 267, 76 S.Ct. 330 (1944)(holding that employees must be compensated for activities performed either before or after the regular work shift if those activities are an integral and indispensable part of the principal activities for which covered employees are employed); see Brock v. City of Cincinnati, 236 F.3d 793, 801 (6th Cir.2001). In Chao v. Tradesmen International, Inc., the Sixth Circuit summarized an employer’s duties under the FLSA and clarified that “the Portal to Portal Act, which amends the FLSA, modified this judicial construction of hours worked to exclude from compensation activities that are ‘preliminary to or postliminary to said principal activity or activities.’ “ Chao v. Tradesmen Int’l, Inc., 310 F.3d 904, 907 (6th Cir.2002)(citing 29 U.S.C. § 254(a)(2); Aiken v. City of Memphis, 190 F.3d 753, 758 (6th Cir.1999)).
The state statutes at issue in this case are found in Kentucky Revised Statutes (“KRS”) Chapter 337, which is Kentucky’s analogue to the FLSA. Specifically, KRS section 337.285 provides that:
No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-1/2) times the hourly rate at which he is employed.K.R.S. § 337.285(1). Neither party has presented any Kentucky cases applying this statute to the present issue-whether an employee is entitled to compensation for off-duty attendance at AA meetings or psychiatric evaluations. In the absence of such authority, Kentucky courts have looked to federal cases interpreting the FLSA for guidance. See, e.g., City of Louisville, Div. of Fire v. Fire Serv. Managers Ass’n, 212 S.W.3d 89, 95 (Ky.2006)(“In the absence of any Kentucky cases on point, we next look to federal cases interpreting the FLSA.”). Accordingly, the Court will apply federal law principals to both the state and federal law claims.
The United States Court of Appeals for the Sixth Circuit has adopted a three step approach to aid courts in determining whether an activity constitutes “work” for purposes of the FLSA. Thus, to determine whether Todd’s attendance at AA meetings and psychiatric evaluations constitutes “work” under the FLSA, we must consider whether: (1) LFUCG required these activities; (2) whether they were necessarily and primarily for the benefit of LFUCG; and (3) whether they were an indispensable part of Todd’s primary employment activities. See Brock, 236 F.3d at 801-04.
A. Whether Todd’s off-duty activities were required by LFUCG?
LFUCG claims that attending these sessions was not a term or condition of Todd’s employment, but was necessary for him to remain fit for duty which is a pre-condition and continuing condition of his employment. In support of its position, LFUCG draws the Court’s attention to Dade County v. Alvarez, in which the Eleventh Circuit determined that off-duty physical fitness training by police officers was not compensable “work” under the FLSA. Dade County v. Alvarez, 124 F.3d 1380 (11th Cir.1997). However, the facts of Alvarez are distinguishable from this case. In Alvarez, the Eleventh Circuit emphasized that while the officers were instructed to do whatever was necessary to maintain their physical fitness levels, they were not directed to undertake any specific off-duty work out routines or training. Id. at 1383. They were simply required to remain in good enough shape to perform their job functions and pass a physical fitness exam. Id. In remaining physically fit, they had complete discretion in deciding on the method, location and amount of off-duty training necessary. Id. In addition, it is significant for purposes of this case that in Alvarez there was no suggestion that the police officers’ employment would have been adversely affected if they failed to engage in off-duty work outs as long as they maintained an adequate level of physical fitness. Id. at 1385.
LFUCG claims that as in Alvarez, Todd’s condition of continuing employment was not that he attend the AA and psychiatric sessions, but that he remain fit for duty. This assertion is not supported by the evidence in the record. While Todd was permitted to select a psychiatrist and choose which AA meetings to attend, unlike Alvarez, he was required to attend a specific number of counseling and AA sessions. Todd was not permitted to exercise any significant discretion in maintaining his sobriety. In addition, he was required to provide documentation to prove his attendance at the AA meetings and psychiatric evaluations. Finally, and most importantly, unlike Alvarez, there is clear evidence in the record that Todd’s employment would have been adversely affected if he failed to attend any of the required sessions. In fact, Leslie Jarvis of the Division of Human Resources wrote a letter to then Chief of Police Anthany Beatty indicating that Todd’s continued employment was contingent on adhering to the recommendations for the remainder of his career.
In this case, it was not enough for Todd to maintain his sobriety and thereby remain fit for duty. Todd’s failure to attend any of these sessions would have resulted in some form of disciplinary action and may have resulted in his termination. Consequently, Todd’s attendance at the sessions was clearly required by LFUCG.
B. Whether Todd’s attendance at AA meetings and psychiatric evaluations was necessarily and primarily for the benefit of LFUCG?
LFUCG argues that these sessions were not primarily for its benefit because Todd acknowledges that treatment has improved his life by allowing him to achieve and maintain his sobriety. In addition, LFUCG relies on statements by Police Chief Bastin that LFUCG’s goal was to allow Todd to get things straightened up, not only so that he could be a successful employee but also for the sake of his home life. Finally, LFUCG claims that because Todd was able to select his own psychiatrist and the specific AA meetings that best addressed his circumstances, the sessions were primarily for his benefit.
Todd counters that the sessions were primarily for LFUCG’s benefit because his attendance was required and ensured his continued employment and contributions to the police department. Todd also draws the Court’s attention to the Seventh Circuit’s decision in Sehie v. City of Aurora, which he argues supports a determination that attendance at the AA meetings and psychiatric evaluations was primarily for LFUCG’s benefit.
In Sehie v. City of Aurora, a former emergency dispatcher sued her employer under the FLSA claiming that her time spent attending and traveling to and from counseling sessions mandated by her employer was compensable “work” under the FLSA. Sehie v. Aurora, 432 F.3d 749, 750 (7th Cir.2005). These counseling sessions stemmed from a fitness for duty evaluation that was performed after Sehie was involved in an incident at work. Id. at 750. Upon completion of the evaluation, it was recommended as a condition of Sehie’s continued employment that she attend weekly psychotherapy sessions for six months. Id. The Seventh Circuit upheld the district court’s finding that the sessions were primarily for the employer’s benefit. Id. at 752.
However, the facts of Sehie are clearly distinguishable from the instant case. First, in Sehie, the Seventh Circuit explained that because the counseling sessions were required and there was a shortage of telecommunications staff, a strong inference arose that the sessions were for the employer’s benefit. Id. at 752. In this case, no evidence has been presented that LFUCG has a shortage of police officers and that the police department needed to retain Todd’s services. As a result, the inference that the counseling sessions were for the employer’s benefit which arose in Sehie, does not arise in this case.
In Sehie, the court also found that the notion that the sessions were for the plaintiff’s benefit was undermined by the fact that she was not permitted to see the therapist with whom she had an existing treatment relationship. Id. In this case, Todd was permitted to attend sessions with the psychiatrist of his choosing and was able to attend the AA meetings that best met his needs. This supports a finding that the sessions were primarily for Todd’s benefit. Furthermore, unlike Sehie where the employer’s payment of ninety percent of the costs of the counseling sessions was found to support a finding that the sessions were for the employer’s benefit. In this case, Todd apparently bore the costs of his various treatments.
The final significant distinction is that in Sehie, the counseling sessions were required because of an incident that occurred at work. In this case, the incident giving rise to Todd’s fitness for duty evaluation occurred while he was off-duty and at home. Furthermore, the purpose of the counseling sessions in Sehie was to enable the plaintiff to “perform her job duties and relate to co-workers more effectively and at a higher skill level by addressing … personality deficiencies and problems that predated” her incident at work. Id. at 752. The sessions sought to enable Sehie to manage her emotional problems which had become an issue at work, properly respond to 911 calls and remain on the job in a position that was short staffed. Id. None of these facts are present in the instant case. There is no indication that there had been any problem with Todd’s on-duty performance. Furthermore, the counseling sessions were not designed to improve his on-duty performance, but to keep him at its existing level in the face of the reasonable threat that his substance abuse problems might make him unfit for duty and endanger himself or the public. As discussed above, there is also no indication that LFUCG received any significant benefit from keeping Todd on-duty. Even accepting that Todd was an excellent police officer, there is no indication that his position was short-staffed so that a course of treatment that allowed for his retention was primarily for LFUCG’s benefit.
As a result, the Court declines to apply Sehie’s holding to these facts. Moreover, this court heeds the 7th Circuit’s caution that “by no means does our ruling suggest that every time an employer gets help for its employees, the employee must be compensated for hours worked.” Id. at 752. Instead, the Court finds that the AA meetings and psychiatric evaluations were not necessarily and primarily for the benefit of LFUCG. The record certainly supports that Todd was a valued and capable police officer . However, there is no evidence that his retention was in any way crucial to the operations of the police department. Instead, it appears that the primary beneficiary of the psychiatric evaluations and AA sessions was Todd. He has acknowledged that sobriety has improved his life and familial relations. Sobriety has also allowed Todd to retain his employment with the police department, which was apparently threatened by his substance abuse problems. The Court cannot find that while in treatment, Todd learned any skills that enabled him to become a more effective or valuable police officer. The skills that Todd learned enabled him to keep his job and ensured that his conduct did not threaten his ability to protect his own safety, the safety of fellow officers and the safety of the public. While in other contexts, the rigid restrictions put in place by the LFUCG might lead to a different conclusion, given the safety sensitive nature of Todd’s employment as a police officer, these restrictions do not appear to be unjustified and have enured primarily to his benefit, not to the benefit of LFUCG.
C. Whether Todd’s treatment was an indispensable part of the primary activities of Todd’s Employment as a Police Officer?
The Court also finds that Todd’s treatment was not an indispensable part of the primary activities of his employment as a police officer. As LFUCG indicates, the primary activities of police officers include activities such as patrol assignments, apprehending criminals, performing investigations and responding to the various happenings of daily life affecting the public safety. Sobriety is not a primary activity of a police officer’s employment despite the fact that an officer’s lack of sobriety may have a detrimental effect on his ability to perform the requirements of his job adequately. Todd clearly was required to expend significant energy to achieve his sobriety so that he could continue to be an effective police officer. However, he performed no police work while at AA meetings or psychiatric evaluations. This is the case despite the fact that these sessions were required as a condition of his continuing employment. Consequently, these sessions themselves are not a primary and indispensable part of the duties of a police officer.
For the reasons discussed in this opinion, it is the Court’s determination that Todd’s attendance at numerous AA meetings and psychiatric evaluations since March 1, 2006, which were mandated by his employer, does not constitute compensable “work” under the FLSA.”
N.D.Ill.: Idle Hours Are Compensable “Hours Worked” For Purposes Of Labor Management Relations Act (LMRA), Because Compensable Under FLSA
Laborers’ Pension Fund v. Eagle America Corp.
Plaintiffs Laborers’ Pension Fund and Laborers’ Welfare Fund of the Health and Welfare Department of the Construction and General Laborers’ District Council of Chicago and Vicinity, and James S. Jorgensen, Administrator (collectively “the Funds”), brought suit against Defendant Eagle America Corporation under ERISA, 29 U.S.C. § 1132(e), and the LMRA, 29 U.S.C. § 185(a). The Funds claimed that Eagle America violated ERISA and the LMRA by failing to make proper employee benefit contributions, failing to pay proper union dues, and failing to maintain a surety bond to guarantee the payment of wages and contributions for all “hours worked.” The case was before the Court on Plaintiffs’ Motion for Summary Judgment. Finding, in part, that Plaintiffs’ members were entitled to be paid for idle time, as “hours worked” under the FLSA, the Court granted Plaintiffs’ Motion for Summary Judgment.
Of interest here, the Court analyzed Plaintiffs’ claims for unpaid idle hours under the framework of the FLSA, determining such hours to be compensable as “hours worked” under the FLSA, thereby finding Defendant liable for unpaid wages and benefits to Plaintiffs.
“Before determining whether there is a genuine dispute as to the accuracy of the audit reports, the Court must analyze the controversy over whether Eagle America is responsible for contributions to the Funds for every hour that a covered employee showed up to work. The controversy essentially boils down to a dispute over whether the requirement that Eagle America make contributions for “each hour worked” covers hours when employees are at the job site waiting for appliances to be delivered or loading docks and elevators to become available.
Eagle America argues that these were not “hours worked” because its employees were idle during these hours due to causes that were “unavoidable” from the Company’s perspective. The Company points to the CBA provision requiring the Company to give four hours payment for time lost to employees reporting for work who are not put to work. The Company notes that the provision contains an exception for occasions when the Company cannot put employees to work for “unavoidable causes.” The parties agree that the Company often has no control over whether appliances, elevators, and docks are available. Thus, the Company argues, because the CBA does not require the Company to pay the employees for these “idle hours,” it need not make contributions for these hours.
The Funds argue that the provision regarding “unavoidable causes” is irrelevant. Instead, they look to federal rules interpreting the Fair Labor Standards Act (FLSA) for guidance on the issue of what constitutes an “hour worked.” According to those rules, which clarify the concepts of compensable time and time worked under the FLSA, “[a]n employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’ ” 29 C.F.R. 785.17 (emphasis added). Eagle America argues that even if the Court looks to the FLSA as a guide, the question of whether waiting time is to be considered working time is a “question of fact to be resolved by appropriate findings of the trial court,” Skidmore v. Swift, 323 U.S. 134, 136-37, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944), and urges the Court to deny summary judgment on that basis.
This lawsuit does not arise under the FLSA. However, in construing the terms of a contract, the Court will take the legal framework in place into account. Florida E. Coast Ry. Co. v. CSX Transp., Inc., 42 F.3d 1125, 1129 (7th Cir.1994). The Court may assume that the parties understood the law in effect at the time of the CBA’s execution and interpret the term accordingly. Id. at 1129-32 (construing settlement agreement not to apply in situations where it would be illegal). Thus, the Court will assume that the parties intended the CBA to require Eagle America to compensate its employees for all hours that are compensable under the FLSA.
The Skidmore Court refused to “lay down a legal formula” as to which “waiting hours” are compensable, holding that courts must address the issue as a case-specific question of fact. 323 U.S. at 136-37, 65 S.Ct. at 162-63. While the interpretive rule cited above is more specific, it does not bind the Court. Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931, 940 (9th Cir.2004) (citing U.S. v. Mead Corp., 533 U.S. 218, 232, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Nonetheless, courts have frequently looked to the rules for guidance in disputes under the FLSA, id. (compiling cases), and, as the rule suggests, the question of whether an employee must remain on or near the premises while waiting is often a factor in the courts’ determinations. See, e.g., Armour & Co. v. Wantock, 323 U.S. 126, 133-34, 65 S.Ct. 165, 168-69, 89 L.Ed. 118 (1944) (affirming judgment in favor of firefighters who could spend time on call playing cards and engaging in other “amusements,” but who were required to remain on premises); see also Owens v. Local No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 351-54 (9th Cir.1992) (compiling factors, distinguishing cases in which employees had to remain on, near, or were frequently called back to premises). In cases where on-premises hours were not considered “working hours,” the workers were allowed to use their time on premises for long resting periods, eating, and engaging in recreational activities. See, e.g., Allen v. Atl. Richfield Co., 724 F.2d 1131, 1137 (5th Cir.1984) (reversing summary judgment to plaintiffs because they were “free to sleep, eat at no expense, watch movies, play pool or cards, exercise, read, or listen to music during their off-duty time”); Rousseau v. Teledyne Movible Offshore, Inc., 805 F.2d 1245, 1248 (5th Cir.1986) (affirming dismissal of claim by plaintiffs who were “free to sleep, eat, watch television, watch VCR movies, play pingpong or cards, read, listen to music, etc….[and] seldom or never did any physical work after their shift ended”).
In this case, Eagle America has provided no facts to call into dispute whether the “idle hours” spent on the jobsite by its employees were in fact “hours worked.” Instead, the Company points to the contract language regarding “unavoidable cause” and stresses that this is a question of fact. However, Eagle America cannot survive the summary judgment phase of these proceedings merely because there is a question of fact involved. The Court will deny summary judgment if there is a “genuine issue as to [a] material fact.” Fed.R.Civ.P. 56(c). Eagle America is correct that in instances of uncertainty regarding whether “hours waiting” are “hours working” the Court “must take account of the arrangement plaintiffs themselves chose.” Binges v. Sacred Heart St. Mary’s Hospitals, Inc., 164 F.3d 1056, 1059 (7th Cir.1999). In other words, the Court will look to the CBA in cases of uncertainty. However, given Eagle America’s failure to put forward any facts regarding the freedom its workers have while waiting for deliveries, loading docks, and elevators, the Court does not find uncertainty in this case.
Assuming for the moment that there is some level of uncertainty, however, and that the CBA is relevant, the Court does not stray from its decision. The Company reads the referenced CBA provision to apply to situations when employees are waiting for elevators and the like. However, the Court reads the provision differently. The provision, which appears under the heading “Reporting for Work,” applies to employees “reporting for work” but “not put to work.” The CBA generally requires Eagle America to pay these employees four hours’ worth of pay for “lost time.” Under the Company’s reading, employees would receive this four hours’ pay regardless of whether they were sent home immediately or were sent home after waiting on the jobsite for eight hours. Or, in the case at issue here, when the Company does not put an employee to work for an “unavoidable cause” such as a late delivery, the employee might be paid nothing for waiting eight hours. The provision makes much more sense if it applies only in situations when an employee is sent home and unable to work the hours that he or she expected to work and not in situations when the employee is required to remain on premises waiting for hours at a time or waiting for minutes between tasks for an entire day.
This reading of the provision finds support in the text of the provision itself. While the Company focuses on the fact that it need not provide any pay in instances of “other unavoidable cause,” the CBA also exempts the Company from paying employees when they are not put to work because of “weather conditions, fire, [or] accident.” In cases of inclement weather, however, the CBA requires the Company to pay employees for hours spent waiting for the weather to clear up. Moreover, in the provision regarding inclement weather, the CBA alternatively refers to “reporting pay” as “show up” pay. These provisions lend a great deal of support to the notion that the parties to the CBA intended for the “Reporting for Work” provisions to require four hours’ pay for employees who “show up” for work but are sent home. They also support the notion that the parties intended workers to get paid for hours spent waiting. Finally, the Court finds further support in the fact that the CBA provides specific exceptions for “weather conditions, fire, [or] accident,” but not for the circumstances at issue in this case. If all parties understood that employees would regularly be required to wait for elevators, loading docks, and deliveries, and they intended for those circumstances to be covered by this provision, it seems unlikely that they would not have included an explicit reference to those circumstances.
The FLSA overrides contracts, so agreements such as the CBA are only relevant in close cases. Dinges, 164 F.3d at 1059. Eagle America has not placed material facts in this case in dispute, and it is therefore not a close case. Furthermore, the Court’s interpretation of the CBA favors the Funds. Thus, even making all inferences in favor of the Company, the Court can resolve this question of fact on summary judgment.”
Thus, the Court granted summary judgment in favor of the Funds on the issue of liability.
Tyson Foods Found In Violation Of Fair Labor Standards Act In Donning And Doffing Suit, Reuters Reports
Reuters is reporting that “Tyson Foods Inc., one of the nation’s largest poultry producers, has been found in violation of the Fair Labor Standards Act (FLSA) at its Blountsville, Ala., facility. The jury’s verdict in federal court in Birmingham resulted from a lawsuit filed by the U.S. Department of Labor against the company…
The Department of Labor’s lawsuit was filed in the U.S. District Court for the Northern District of Alabama. The federal department alleged that Tyson Foods did not keep accurate records and failed to pay production line employees for the time they spend donning and doffing safety and sanitary gear, and performing other related work activities. The violations cover the period from the year 2000 to the present and affect approximately 3,000 current and former workers at the plant.
The initial investigation began in April 2000 as part of the department’s Wage and Hour Division’s poultry enforcement initiative. The Labor Department filed the district court complaint in May 2002 following the company’s failure to comply with the law and to pay back wages. The first jury trial, which began in February 2009, ended in a mistrial. The Labor Department chose to pursue a second trial in August 2009 to secure a ruling that Tyson was failing to compensate its employees lawfully.”
To read the full story go to Reuters’ website.
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.”
2nd Cir.: Reiterates Carrying 20 LB. Bag Does Not Transform Otherwise Non-Compensable Commute Time Into Compensable Time; Applyies “Predominate Benefit Test”
Clarke v. City of New York
Revisiting an issue it has previously ruled on, the 2nd Circuit held that an employee’s required carrying of 20 pounds of materials each day to and from work, during his or her daily commute does not transform otherwise non-compensable travel time into compensable work hours.
“This case falls squarely under the previously decided Singh v. City of New York, 524 F.3d 361 (2d Cir.2008). In Singh, a group of inspectors with the Fire Alarm Inspection Unit of the New York Fire Department brought a claim under the Fair Labor Standards Act (“FLSA”), as amended by the Portal-to-Portal Act, demanding compensation for their commuting time because they were required by their employer to transport and protect inspection documents. Id. The collective weight of their materials was between 15 and 20 pounds. Id. at 365.
We analyzed the claim in two parts, looking first to whether plaintiffs were entitled to compensation for the entire commute and, if not, whether they were entitled to compensation for the additional commuting time that resulted from their transport of these materials. Id. at 366-67. For the first part of the analysis, we applied a “predominant benefit test,” asking whether the employer’s restrictions hindered the employees’ ability to use their commuting time as they otherwise would have. Id. at 369. We determined that the inspectors’ commute was not materially altered by their document transport responsibilities, and thus they were not entitled to compensation for the entire commute. Id. at 370. We then looked to the second part of the test to determine if the additional commuting time that resulted from the transport of the documents was compensable. Id. While noting that the additional time was time spent “necessarily and primarily for the benefit of the City” and thus was compensable, we looked to a three-part test to determine if such compensable time qualified as de minimis. Id. The three factors were: “(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis.” Id. at 371. Under this test, we determined that the additional commuting time was de minimis as a matter of law. Id. Thus, none of the plaintiffs’ commuting time was compensable under the FLSA. Id. at 372.
The facts of the case before us are materially indistinguishable from Singh. Plaintiffs in this case, like Singh, are responsible for the transport of a 20-pound bag of equipment. This 20-pound bag, however, does not burden the plaintiffs to such a degree as to make the City the predominant beneficiary of their commute. Their responsibility is limited to transporting the bag; there are no other active work-related duties required during the commute. Transporting a bag in a car trunk, or at plaintiffs’ feet on a train or bus, allows them to use their commuting time as they wish. To the extent that the bag adds time to their commute, we find, just as in Singh, that such time is de minimis and non-compensable.”