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The time a group of call center workers spent booting up their computers is inextricably intertwined with their work and therefore compensable under the Fair Labor Standards Act (FLSA), the Ninth Circuit ruled this week, overturning a win a district court handed to their employer, and joining sister circuits who have reached a similar conclusion.
In a unanimous published decision, the Ninth Circuit reversed a Nevada district court’s 2021 decision which had granted call center employer Customer Connexx LLC summary judgment on the workers’ overtime suit, reasoning that the workers needed to have a functional computer in order to do their jobs. Thus, the panel concluded that the time the call center workers spent booting up the computers is compensable under the Portal-to-Portal Act.
“The employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” U.S. Circuit Judge Jay S. Bybee wrote on behalf of the panel.
Under the Portal-to-Portal Act, which amended the FLSA, employers are not required to pay for time workers spend traveling to and from the place of principal work activities or for time they spend on certain preliminary or postliminary activities which are not integral to their work.
Here, the workers sued in 2018, alleging that Connexx, failed to pay them overtime as required by the FLSA and Nevada law, because they failed to track and compensate them for the time they spent booting up and turning off their computers after they logged into and out of the company’s timekeeping system.
The district court granted Connexx summary judgment in July 2021, finding that the tasks the workers completed before and after they logged out of the company’s timekeeping system were not compensable preliminary and postliminary activities because they did not meet the legal standard to be considered part of their jobs.
The Ninth Circuit disagreed and reversed, saying the district court erred in focusing its reasoning on whether the activities were essential to the workers’ jobs and should have instead put emphasis on whether starting the computer led the call center workers to be able to perform their work. Discussing the issue, the Court explained:
When the employees’ duties are understood in this way, the electronic timekeeping system becomes a red herring. It is a convenience to the employer… It has no impact on the ‘integral and indispensable’ analysis except to show us when Connexx began counting the employees’ time.
Because the workers needed to have “a functional computer … turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities,” the panel concluded.
The Ninth Circuit also rejected Connexx’s argument that the district court’s decision should be affirmed because the pre-shift time was de minimis and because the company was not aware of the alleged overtime, noting that those are “factual questions” that the lower court didn’t address, and thus not properly before it.
Of note, the panel clarified in a footnote that its opinion focused on the pre-shift activities, and stated that its opinion should not be read to hold that turning the computers off was an integral part of the workers’ jobs.
The Department of Labor had filed an amicus brief in support of the workers, in which it argued the time at issue was compensable under the FLSA, because the workers could not do their jobs without booting up the computers.
Click Cadena v. Customer Connexx LLC to read the entire decision.
*** Andrew Frisch and Morgan & Morgan are actively handling and investigating similar cases on behalf of call center workers. If you believe your call center employer is not paying you for all time worked, contact us for a free consultation at (888) OVERTIME [888-683-7846] today. ***
D.Md.: Loading/Unloading of Materials Could Be Deemed “Integral and Indispensable” for Fire Protection Services; DMSJ Denied
Ross v. Wolf Fire Protection, Inc.
Plaintiffs, employees who installed fire protection services (sprinklers) on behalf of their employer, filed this lawsuit claiming that Defendant failed to pay them for all of their compensable work time. Specifically, Plaintiffs asserted that Defendant improperly failed to start their work day each day when they were required to come to Defendant’s facility to pick up expensive tools necessary for their work and load Defendant’s trucks. Similarly, Plaintiffs alleged that Defendant failed to properly pay them for time spent when they were required to return such tools (and work vehicles) to Defendant’s facility at the end of each work day. The Defendant argued that such time was precluded by the Portal-to-Portal Act, and in any event was de minimus such that it was not compensable time. The court held that the facts could support a finding that such time was “integral and indispensable” to their work, thus making it potentially compensable. As such, it denied Defendant’s motion.
Rejecting Defendant’s contentions, the court reasoned:
“The Defendants argue that the Plaintiffs “have never been instructed or directed to come to the [warehouse] before the start of the workday or at the end of the workday to pick up or drop off tools,” so loading of equipment at the warehouse cannot be an integral and indispensable part of their jobs. Defs.’ Mot. 7. The Plaintiffs contend that loading the equipment was integral because the equipment was necessary to installing sprinkler systems, and the Defendants required that they pick up the equipment at the warehouse. Pl.’s Opp’n 2–4.
An activity is “integral and indispensable” to the employee’s principal activities if it is “(1) necessary to the principal work performed and (2) done for the benefit of the employer.” Perez, 601 F.Supp.2d at 676 (citing Alvarez v. IBP, Inc., 399 F.3d 894, 902–03 (9th Cir.2003)).
The parties do not dispute that the Plaintiffs’ principal work was sprinkler system installation. See Defs.’ Mot. 6; Pls.’ Opp’n 2. Phillips’s affidavit is that the equipment he loaded and unloaded included items “necessary” to installing the sprinkler systems, such as the sprinkler heads, and because this equipment was expensive, Fire Protection “did not want [it] delivered directly to the job site” and “required [employees] to pick the[ ] [equipment] up at the warehouse, sign for [it], and account for [it].” Phillips Aff. ¶ 9.
From the evidence in Phillips’s affidavit, a reasonable factfinder could conclude that Phillips needed the equipment loaded at the warehouse to complete his job (the first part of the “integral and indispensable” inquiry). From his testimony that Fire Protection did not want expensive items delivered directly to the job sites, and required that the pipefitters pick up and sign for the equipment, a reasonable factfinder could conclude that the loading and unloading was “done for the benefit of the employer.” It is genuinely disputed whether Fire Protection required the plaintiffs to load and unload equipment, and whether the loading and unloading was “integral” to their “principal activity” requiring compensation under the FLSA.”
Rejecting Defendant’s contention that Plaintiffs were not entitled to be paid for travel time, the court explained:
“The Defendants argue that the Plaintiffs’ “voluntary carpooling” while “transporting tools, equipment and supplies” is not compensable under the FLSA. Defs.’ Reply 4. The Plaintiffs contend that because their workday started with loading the trucks at the warehouse, they must be compensated for all subsequent travel time within the workday. Pls.’ Opp’n 3–5.
The Portal–to–Portal Act did not change the “continuous workday” rule that “any walking, riding, or traveling 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 covered by the FLSA.” Epps, 2011 WL 1566004, at *5 (internal quotation marks omitted). Applicable regulations provide that:
Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday must be counted as hours worked. Where an employee is required to report to a meeting place … to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. 29 C.F.R. § 785.38.
As discussed above, Phillips’s affidavit that Fire Protection required him to report to the warehouse to load and sign out expensive equipment Fire Protection did not want delivered directly to the job site creates a genuine dispute whether the loading and unloading was a principal activity. Viewing the evidence in the light most favorable to the Plaintiffs, it also creates a genuine dispute about whether travel from the warehouse to the job site and the return to the warehouse at the end of the day are “part of the day’s work” requiring compensation under the FLSA. The Defendants’ motion for summary judgment on the Plaintiffs’ FLSA unpaid wages claim will be denied.”
The issues discussed in this case are far from unique in the work world. However, many employers continue to violate the law, assuming that they need only pay employees for time spent at customer work sites, where the employer is profiting from the employees’ work. This case serves as a reminder that this is a misconception of the law.
Click Ross v. Wolf Fire Protection, Inc. to read the entire Memorandum and Opinion.
W.D.Pa.: Security Guards Not Entitled to Be Paid For Pre- and Postliminary Work or Time Spent Cleaning Uniforms, As Required By Employer; Complaint Dismissed
Schwartz v. Victory Sec. Agency, LP
This case was before the court on defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim. The plaintiffs, security guards employed by defendant, alleged that the defendant has failed to properly compensate them for pre- and post- shift work that defendant required them to perform as part of their jobs. In its decision, the court agreed, largely citing in apposite case law in support of its decision.
First, the court held that time spent performing pre- and post-liminary duties required by defendant, for which no compensation was received, was precluded by the portal-to-portal act. Accepting the facts underlying this claim, as required on the motion to dismiss the court explained:
“Throughout the relevant time period, Defendant ex-pected Plaintiffs “to be available to work before commencement of their shift, during their promised meal break and after completion of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs per-formed pre-shift work including: receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing logs and event reports, collecting schedules, meeting with supervisors and providing pass down instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15–30 minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id. at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant’s agents regularly encouraged, instructed, suffered and per-mitted” Plaintiffs to perform this work and observed them doing so. Id. at ¶¶ 22, 31. Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they performed because Defendant’s timekeeping and pay practices improperly placed the burden on Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for such work. Id. at ¶ 24, 34.”
Notwithstanding these detailed allegations, the court concluded “Plaintiffs do not detail how Defendant’s failed to compensate them for pre- and post-shift work” and dismissed the claim (without prejudice) on this basis.
Addressing plaintiffs’ second claim, regarding defendant’s failure to pay them for time (1 to 2 hours per week) they were required to spend cleaning their uniforms, in order to meet defendant’s dress code requirements, the court found this claim equally unavailing. After a brief discussion of recent case law regarding the definition of tasks that are integral to work (so as to make them compensible), the court summarily concluded that “[h]ere… while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensible to Plaintiffs’ principal activity, providing security.” In so doing, the court ignored the obvious parallels of the uniform maintenance to other cases where courts found that similar activities were integral (i.e. feeding, training and walking of K-9 dogs by police officers while “off-duty”). Given the fact that the defendant required the plaintiffs to wear these uniforms, and that they maintain the uniforms in a presentable fashion it is unclear how the court reached its conclusion in this regard.
It will be interesting to see whether the plaintiffs will appeal this decision, which seems to be out of line with prevailing authority outside of the Third Circuit regarding these issues.
Click Schwartz v. Victory Sec. Agency, LP to read the entire Decision.
9th Cir.: Time Police Officers Spent Donning/Doffing Uniforms and Equipment Not Compensable, Because Officers Had The Option Of Donning/Doffing At Home
Bamonte v. City of Mesa
Appellants, police officers employed by Appellee City of Mesa (City), challenged the district court’s entry of summary judgment in favor of the City. The officers contended that the City violated the Fair Labor Standards Act (FLSA) by failing to compensate police officers for the donning and doffing of their uniforms and accompanying gear. Because officers had the option of donning and doffing their uniforms and gear at home, the district court determined that these activities were not compensable pursuant to the FLSA and the Portal-to-Portal Act. The Ninth Circuit affirmed, and held that these activities were not compensable pursuant to the FLSA.
To read the entire opinion click here.
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.
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.”
D.R.I.: Since Rhode Island Minimum Wage Act Does Not Create Private Cause Of Action, Rhode Island Has Not Waived Its Sovereign Immunity From FLSA Claims
Hauser v. State of Rhode Island Dept. of Correction
This case arose from an allegation that the State of Rhode Island Department of Corrections (DOC) fails to adequately compensate five officers who care for police dogs. The State moved to dismiss Plaintiffs’ two claims: violation of the Rhode Island Minimum Wage Act, R.I. Gen. Laws § 28-12-1 et seq.; and violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The Court concluded that no private right of action exists under the Rhode Island Minimum Wage Act, and that the State has not waived its sovereign immunity as to the FLSA claim.
The Court first determined that the Rhode Island Minimum Wage Act does not provide for a private right of action, “[w]hile the Minimum Wage Act is silent as to whether an individual private right of action exists, it does speak to enforcement. Section 28-12-13 provides: “Responsibility for enforcement-[t]he provisions of this chapter shall be carried out by the division of labor standards”; and § 28-12-14(7) provides: ‘Enforcement powers-[t]he director or the commissioner or any authorized representative of either shall have the authority to: [b]ring all actions, suits, complaints, and prosecutions for the violation of any of the provisions of this chapter.
These provisions, combined with the lack of an express private right to sue, indicate that the General Assembly did not intend to provide an individual right of action to aggrieved employees. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (“[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.”); In re John, 605 A.2d 486, 488 (R.I.1992) (noting that when a statute “does not plainly provide for a private cause of action, such a right cannot be inferred”); Narragansett Pellet Corp. v. City of East Providence ex rel. Fitzgerald, C.A. No. 06-464 ML, 2007 WL 2821538, at *6-7 (D.R.I. Sept. 25, 2007) (no private right of action where statute prescribed a particular enforcement process). There can be little doubt that had the General Assembly deemed it appropriate or necessary to afford employees a private right of action against employers to enforce the minimum wage law, it would have expressly done so. Compare, e.g.,R.I. Gen. Laws §§ 28-5-24.1, 28-29 (setting forth framework for individual claims under Fair Employment Practices Act). Absent any indication from the statute itself or in the legislative history that this is what the legislature intended, it would be clearly inappropriate to create such a right by judicial fiat.”
The Court then tackled the more nuanced issue of whether Rhode Island has waived sovereign immunity under the FLSA, and held it has not. “The issue in this case, however, is not so easily dispatched because of an interesting procedural wrinkle: whether the State waived its Eleventh Amendment immunity as to an FLSA claim by removing the action from Rhode Island Superior Court to federal court?
A state may consent to suit by a clear declaration of its intention to submit itself to federal court jurisdiction, and may waive immunity to suit by voluntarily invoking federal court jurisdiction. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 675 (1999); Lombardo v. Pennsylvania Dep’t of Pub. Welfare, 540 F.3d 190, 195-96 (3d Cir.2008). The “test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). There is no suggestion here that Rhode Island expressly consented to be sued for an FLSA violation in federal court. Rather, Plaintiffs say the State’s removal voluntarily invoked jurisdiction, constituting an implied waiver of immunity.
The leading decision on “waiver by removal” is Lapides v. Bd. of Regents of Univ. Sys. Of Georgia, and it is instructive but not on all fours with the present circumstances. 535 U.S. 613 (2002).Lapides discussed whether a state that removes a claim to federal court waives Eleventh Amendment immunity when the state already consented to suit for the claim in its own state court. Id. at 616-17.The Supreme Court held that it did, because otherwise the state would unfairly regain in a federal forum an immunity which it voluntarily abandoned in state court. Id. Importantly, though, the decision did not directly address the effect of removal of a claim as to which a state retained immunity in its own state court-arguably the situation here, and the subject of post-Lapides debate. See, e.g., Stewart v. North Carolina, 393 F.3d 484, 490-91 (4th Cir.2005) (discussing scope of Lapides and holding a state does not waive immunity by removal when it would have been immune from suit for the same claim in state court); Boone v. Pennsylvania Office of Vocational Rehab., 373 F.Supp.2d 484, 499-500 (M.D.Pa.2005) (barring ADA claims against state despite removal because state retained immunity from suit under the ADA in state court).
Under Lapides, the question here, then, is whether Rhode Island retained its immunity from suit as to an FLSA claim in its own courts. If it did, removal triggers no concerns about inconsistency or unfair litigation gamesmanship because in either forum, the State maintains its immunity. As a starting point, under Alden v. Maine the State is correct that it is immune from suit in its own court under the FLSA absent consent or waiver. 527 U.S. 706, 755-57 (1999). Thus the key issue is Plaintiffs’ contention that Rhode Island waived this Alden immunity in its own courts.
Waivers of immunity must not be lightly implied and must be “stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal citation and quotation omitted); see Andrade v. Rhode Island, 448 A.2d 1293, 1295 (R.I.1982) (noting courts must presume the legislature did not intend to “deprive the state of any part of its sovereign power unless the intent to do so is clearly expressed or arises by necessary implication from the statutory language”). The Court has not identified, nor have the parties offered, any Rhode Island state case addressing waiver of immunity as to a wage claim.
Plaintiffs first suggest the State made itself amenable to suit for claims “identical” to the FLSA via the Rhode Island Minimum Wage Act, so “it does not make much sense to allow the State to ignore parallel federal law.”They claim “there is no question that the state courts permit suits against the State under the Act.”(See Pl.’s Obj. to M. to Dismiss 8 (Doc. No. 8).) But there is indeed a question. As detailed above, the statute lacks express consent by the State to be sued for wage violations. Compare Anthony v. Iowa, 632 N.W.2d 897, 900-02 (Iowa 2001) (rejecting state’s immunity claim under Alden to FLSA action in state court where state wage and labor scheme provided express consent to be sued). The fact that Rhode Island’s wage statute excludes some, but not all, state employees from the overtime provisions (arguably suggesting all other state employees are subject to the provisions) does not mean the State intended to make itself amenable to suit for those claims. And while it may well be the case that the State could be subject to an action in its own courts by the Rhode Island DOL, or an FLSA action by the Secretary of Labor in federal court, this is not a substitute for a clear and unequivocal waiver of immunity for private causes of action. The bottom line is that the simple enactment of wage provisions reflecting or mirroring the FLSA, without more, is too thin a reed on which to find clear waiver. See Jarrett v. Alexander, 235 F.Supp.2d 1208, 1215 (M.D.Ala.2002) (discussing waiver of immunity for FLSA claim in federal court where state did not waive immunity merely because it “incorporated portions of the FLSA or its regulations into state law”); Crawford v. Lexington-Fayette Urban County Gov’t, No. 06-299-JBC, 2007 WL 101862, at *2-3 (E.D.Ky. Jan. 10, 2007) (refusing to find waiver of immunity simply because state wage law broadly defined “employer” and “employee”)
Finally, Plaintiffs urge “waiver by necessary implication.” This, they claim, comes from the fact that sovereign immunity in general has been “obliterated” for many tort and employment-related claims in Rhode Island-creating a landscape “vastly” different than the one in Maine, which was found not to constitute waiver in Alden.
There is no question that in some circumstances Rhode Island has explicitly waived its sovereign immunity. See, e.g.,R.I. Gen. Laws § 9-31-1 (governmental tort liability). But no such explicit waiver exists here, and the cases on which Plaintiffs rely for implied waiver are very situation-specific and fail to support this broad, so-called “obliteration” of immunity. See, e.g., Pellegrino v. Rhode Island Ethics Comm’n, 788 A.2d 1119, 1123-25 (R.I.2002) (state impliedly waived immunity by providing for compensation to commission members for attendance at meetings and then refusing to pay, because disallowing recovery would give statute a “mere nugatory existence”); Donnelly v. Town of Lincoln, 730 A.2d 5, 10 (R.I.1999) (town not insulated from prejudgment interest award in workers compensation case because it voluntarily joined workers’ compensation system) (emphasis added); Capital Props., Inc. v. State, 749 A.2d 1069, 1081 (R.I.1999) (over city’s protest, state could waive immunity and bring declaratory judgment action to determine contractual obligations).
In sum, Rhode Island is not unlike many states that pick and choose what classes of suits to permit, and there is nothing wrong with such a selective practice: “To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.” Alden, 527 U.S. at 758. Nothing in Rhode Island’s “landscape” or wage laws justifies finding waiver of immunity by necessary implication. See Reagan Constr. Corp. v. Mayer, 712 A .2d 372, 373 (R.I.1998) (“When a statute purporting to waive any aspect of the state’s sovereign immunity is examined, the language of the statute must be closely parsed and strictly construed.”).
Consequently, because the State did not consent to suit or waive its Alden immunity to be sued in its courts under the FLSA, removal does not waive its Seminole Tribe immunity in federal court. The result is harsh but could be easily changed with a stroke of the legislative pen, if so desired. See Rodriguez v. Puerto Rico Fed. Affairs Admin., 435 F.3d 378, 380 (D.C.Cir.2006) (“Taken together, Seminole Tribe and Alden mean that state employees no longer have any ‘court of competent jurisdiction,’ 29 U .S.C. § 216(b) [FLSA], in which to sue their employers for FLSA violations.”).”
Agee v. Wayne Farms LLC
The litigation in this case arises from the allegations that the Defendant has violated the Fair Labor Standards Act (“FLSA”) by failing to compensate a number of its employees for work-related activities. See generally29 U.S.C.S. § 201 et seq. The Plaintiffs in this case contest a specific pay practice: the use of a master time card to track the work hours of employees assigned to a processing line at the Defendant’s Laurel, Mississippi plant. The Plaintiffs contended that this pay practice allows the Defendant to forego paying them for time spent on activities that are compensable under the FLSA. The case was before the Court on Defendant’s motion for partial summary judgment. Finding that Defendant’s could not properly off-set time worked by Plaintiffs but not properly paid by Defendant, the Court denied Defendant’s Motion.
The Plaintiffs filed this action against Wayne Farms claiming violations of the minimum wage and maximum hour (overtime) requirements of the FLSA. see29 U.S.C. §§ 206, 207. In their motion for summary judgment, Defendant contended that the Plaintiffs’ complaints ignored Defendant’s practice of paying each employee for 11 extra daily minutes in addition to those minutes actually worked. Six of these eleven extra daily minutes are paid as “personal time.” Defendant alleged that it “adds another five paid minutes to each day by giving Laurel plant employees a thirty-five minute lunch break, while deducting only thirty of those minutes from paid time.” Defendant contended that when the additional 11 daily minutes are factored in, the 17 Plaintiffs listed above no longer allege viable FLSA claims.
Addressing this argument, deemed one of first impression by the Court, the Court explained, “[e]ven assuming that Wayne Farms has established that there is no genuine issue of material fact, this Court cannot grant the instant motion for summary judgment unless it is convinced that Wayne Farms is also entitled to judgment as a matter of law. FED R. CIV. P. 56(b). Wayne Farms has failed to cite even a single legal authority supporting its contention that it need not compensate its employees for work performed but can simply credit it against payments made to its employees for a paid lunch period or a paid personal time period . In light of Wayne Farms’ utter failure to cite legal authority in support of its contention, combined with the results of the Court’s independent research, the Court is not convinced that Wayne Farms would be entitled to judgment as a matter of law even if the facts of the case are as Wayne Farms represents them to be.
The question of whether an employer can lawfully credit “personal time” payments and “paid lunch” payments against compensation due to the employees under the FLSA appears to be one of first impression in this district. The Court notes, however, that one district court in this circuit has considered and rejected a similar argument. In addition, at least one circuit court has rejected a similar argument.
Section 207(h) of the FLSA governs compensation creditable toward minimum wage and overtime compensation. See§ 207(h)(1). Generally, “sums excluded from the regular rate … shall not be creditable” toward such wages. Id. Instead, only the “[e]xtra compensation paid as described in [§ 207(e)(5)–(e)(7) ] shall be creditable ….” § 207(h)(2).Sections 207(e)(5) through (e)(7) list only the “extra compensation provided by a premium rate” and are therefore inapplicable in the case at bar. As a result, the Court concludes that § 207(h) prohibits the manner of offsetting that Wayne Farms seeks to employ.
In Duplessis v. Delta Gas, Inc., 640 F.Supp. 891 (E.D.La.1986), a district court in this circuit interpreted § 207(h) with similar results. In Duplessis, the defendants sought “a credit against [the] plaintiffs’ award of overtime compensation for the extra compensation paid for nonproductive time and year end bonuses.”Id. at 896.Noting that the payments made were not “related to the performance of overtime, and instead [were] ‘payments made for occasional periods when no work is performed’ ” the Duplessis court held that the payments were not creditable as overtime. Id. at 897 (citing §§ 207(e)(2), (e)(3), and (h)).
The United States Court of Appeals for the Ninth Circuit held that an employer could not “lawfully credit the ‘paid lunch’ time payments against overtime compensation due the employees.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903, 913-14 (9th Cir.2004). In Ballaris, the plaintiff employees received two meal periods: a 30-minute unpaid meal period and a 30-minute paid meal period. Id. at 906.The court noted that “the parties treated the half-hour paid lunch period as non-working time.”Id. at 909.Consequently, the court found “that the payments for the lunch periods constituted an additional benefit for employees and not compensation for hours worked.”Id. Denying the defendant’s request to credit the “paid lunch” compensation against the compensation required by the FLSA, the court relied primarily on § 207(h).See id. at 913-14.The court noted that “compensation for paid lunch periods is excluded from the regular rate under section 7(e)(2)” and that, as a result, any “offset of wages or overtime compensation due for hours worked is in direct violation of the express provisions of section 7(h).”Id at 913.In addition, the court noted that such a practice “would undermine the purpose of the FLSA” and would constitute a “false and deceptive ‘creative’ bookkeeping.” Id. at 914.
As these non-binding cases are consistent with this Court’s interpretation of the FLSA, the Court concludes that the motion for summary judgment should be denied.”
D.Md.: Time Chicken Plant Workers Spent Donning & Doffing PPE Compensable; Plant’s Take Home Policy Is “Illusory”
Perez v. Mountaire Farms, Inc.
This opinion was rendered by the Court following a bench trial where expert and lay testimony was presented by both the employees and the employer. The primary issue in the case, was the oft-litigated issue of whether time the employees spent donning and doffing personal protection equipment (PPE), is compensable under the FLSA (as benefiting the employer), or not. In finding that such time is compensable the Court addressed several arguments presented by the Defendant to the contrary.
“The DOL has defined “work day” as “the period between the commencement and completion on the same work day of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(a), (b). “[T]o the extent that activities engaged in by an employee occurs after the employee commences to perform the first principal activity on a particular work day and before he ceases the performance of the last principal activity on a particular work day,” those activities are not exempted from FLSA and are compensable. Id. Thus, under the “continuous work day” rule, any activity-donning and doffing, walking, waiting, sanitizing-undertaken by the employee after the work day has begun is compensable. See IBP, Inc. v. Alvarez, 546 U.S. at 28-29.
The Supreme Court has held that activities that are “integral and indispensable” to principal activities are themselves principal activities-not pre- or postliminary-and are therefore compensable under the FLSA. Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (“activities performed either before or after the regular work shift, on or off the production line, are compensable … if those activities are an integral and indispensable part of the principal activities”). In my March 9, 2009 Memorandum and Order, I discussed the various approaches adopted by different circuits in defining the types of activities that are “integral and indispensable” to principal activities. In the end, I chose to follow the Ninth Circuit’s two part test: that donning and doffing of unique and non-unique protective gear are “integral and indispensable” if doing so is (1) necessary to the principal work performed and (2) done for the benefit of the employer. See Alvarez, 339 F.3d at 902-03. However, I left for determination at trial the specific question of whether donning and doffing PPE is “integral and indispensable” to the principal work of chicken processing. I find and conclude that it is.
First, donning and doffing is necessary to the principal work of chicken processing. It is undisputed that all employees are required to wear the following items no matter the department in which they work: wear plugs, bump caps, smocks (also called coats), hair/beard nets, and steel toed rubber boots. These items are required by Mountaire company policy, United States Department of Agriculture (“USDA”) sanitary regulations, and Occupational Safety and Health Administration safety requirements (“OSHA”). For example, OSHA requires employees to wear ear plugs to protect the employees’ ears. Different ear plugs have different OSHA ratings and employees are required to wear specific ear plugs depending on which section of the plant they work and how noisy that section is.
Other PPE items are required in order to keep the chickens clean. According to Alan Zlotorynski, a human resources manager at a different Mountaire plant, Mountaire requires employees to wear bump caps not to protect employees from actually bumping their heads, but because bump caps prevent employees’ hairs from falling into the products. The bump caps are not made of the same grade or quality of a helmet that prevents head injuries when worn. The primary purpose of the bump caps is to protect the product. The same may be said for hair and beard nets. In addition, employees must don and doff smocks, aprons, and gloves to safely handle chickens. Employees are not allowed to take smocks, aprons, or gloves into restrooms for sanitary reasons. Employees are likewise prohibited from taking aprons into the cafeteria. Shitwa Perez, an employee in the evisceration, salvage, and debone department, testified that an inspector specifically told her to replace her smocks to prevent contaminating the food. I credit this testimony. Clean smocks are so integral to chicken processing that the company launders the smocks daily and provides them to the employees on racks in easily accessible hallways.
Defense witnesses testified that everyone entering the production floor is required to wear all of these listed PPE items. But, the fact that everyone is required to wear these PPE items does not negate the fact that wearing them is required for chicken processing at Mountaire. Donning and doffing the required PPE are paramount to complying with federal regulations as well as producing safe products. Indeed, donning and doffing is so important to the work done at Mountaire that employees are subject to discipline or termination for failing to comply with donning requirements.
Other PPE that are not per se required by Mountaire are no less necessary for chicken processing. The workers testified during trial that they must wear clean cotton gloves in order to properly do their work. Mountaire does not require employees to wear cotton gloves; however, I find that cotton gloves are necessary to the principal work of chicken processing. Ray Barrientos, for example, worked on the Evisceration department. Workers in this department process chickens that have recently been dipped in scalding water and plucked. When the chickens arrive at his work station, therefore, the chickens are extremely hot and difficult to handle. Barrientos, and others on his line, are required to hang 45 chickens per minute. During cross-examination, Barrientos did admit that he may be able to perform his work without cotton gloves. Without the gloves, however, it would be impossible to hang the chickens properly at the pace required by Mountaire.
Luisa Perez, who worked in the breast debone department, encountered a different problem than Ray Barrientos. The temperature in the debone department was kept at 45 ° F. She had to wear fabric gloves under her mesh gloves in order to keep her hands warm. Moreover, she needed clean gloves to hold the knives safely because the blood and fat from the chickens made the knives extremely slippery. Cold hands make using knives, scissors, and other cutting equipment more dangerous to use. It is extremely clear that the PPE items are necessary to processing chickens properly.
Second, donning and doffing is done for the benefit of Defendant-employers. Michael Tirrell summarized the benefits of donning and doffing well. He testified that employees benefit from donning and doffing the PPE items inasmuch as the PPE items protects employees from workplace hazards. He also testified that Mountaire benefits from the employees’ donning and doffing because the PPE protects the products from contamination, helps keep workers compensation payments down, keeps missed time to a minimum, and shields the company from pain and suffering payments. I find and conclude that Mountaire is the primary beneficiary of the donning and doffing.”
The Court then addressed Defendant’s contention that the time is not compensable, because the employees have the option of taking home their PPE and changing there, rather than at work. Rejecting this argument, the Court stated it believed this was simply an “illusory” argument:
“In May 2006, DOL issued an advisory opinion stating that “if employees have the option and ability to change into the required gear at home, changing into the gear is not a principal activity, even when it takes place at the plant.” DOL Wage & Adv. Mem. No.2006-2 (May 31, 2006).FN1 In Abbe v. City of San Diego, the Southern District of California granted the city’s summary judgment motion because it could find “no evidence that its officers were required by law, policy, or the nature of their work to don and doff their uniform or safety equipment at work.” 2007 WL 4146696 at *7 (S.D.Cal. Nov. 9, 2007). The Northern District of California, on the other hand, concluded that donning and doffing may be compensable even if performed off the employer’s premises because “the location of the donning and doffing activity [should] be only one of the considerations” in determining if an activity is compensable. Lemmon v. City of San Leandro, 538 F.Supp.2d 1200, 1207 (N.D.Cal.2007). The important question is whether employees “actually have a meaningful opportunity to don their protective gear at home, or instead, whether that option is illusory.” Martin v. City of Richmond, 504 F.Supp.2d 766, 775 (N.D.Cal 2007).
The same memorandum includes a footnote which reads, “Since, like donning, obtaining the gear (as opposed to waiting to obtain the gear) ‘is always essential if the worker is to do his job,’ the compensable day starts once the employee has obtained the gear required to be stored on the premises by taking items out of a bin, a locker or another designated storage area.” Defendants would have the court read the phrase “required to be stored on the premises” strictly. They argue that, because PPE items are not required to be kept at the plant, the compensable day does not start when the employee dons PPE. I decline to read the DOL footnote so strictly. I find and conclude that the phrase “required to be stored on the premises” has a more practical meaning. The PPE were required to be stored at the premises because Mountaire gives each employee a locker in which to store all of the PPE and because, in reality, employees keep their PPE in their lockers, thereby making the option to take PPE home, illusory.
Defendants assert that employees have the option of taking home all of their PPE items; thus, donning and doffing cannot be a principal activity per DOL’s advisory opinion. I disagree. This case differs from Abbe in that Mountaire employees are required by law, policy, and the nature of the work to don and doff their PPE at work. More importantly, I find the take home option illusory. Employees are provided with lockers. Any employee who requests a locker receives one. Employers recently expanded the number of employee lockers. If changing at home were a bona fide option, there would be no real need for employee lockers or for Defendants to incur the costs of installing them. While employees are required to clean out their lockers on Fridays, they keep all of their PPE items in the lockers during the week. Dr. Radwin’s videos show employees storing their PPE items in their lockers at the end of the day, rather than taking those items home. As a practical matter, it would be onerous and indeed impractical for employees to take home a host of PPE (ear plugs, bump caps, smocks, aprons, hair/beard nets, and steel toed rubber boots) everyday when they have the option and ability to leave them in their lockers at the plant.
While Tirrell testified that he has seen employees driving around town with all of their PPE on, this particular incidence happens once in a “blue moon.” And it certainly does not happen in the middle of a humid Delaware summer. Furthermore, employees were not allowed to take smocks home prior to July 9, 2006. The normal order of donning is as follows: the smock goes on first, followed by the apron, the arm sleeves, and gloves. The smock is the foundation of the PPE. It must be in place before other gear can be donned. Complete donning for work, therefore, cannot be achieved until the lab coat is donned. So, even if employees were taking their PPE home before July 9, 2006, they could not commence the donning process until after they arrived at the plant.
Defendants emphasize that employees were allowed to take smocks home beginning on July 9, 2006. This fact does not strengthen Defendants’ take home defense. First, it is wholly illogical for employees to take home smocks soiled with chicken blood and fat when the company (1) provides hampers, close to the exits, in which employees may place the soiled smocks, (2) launders the smocks free of charge, and (3) provides clean smocks, arranged neatly on racks that are easily accessible at the plant hallways, at the beginning of the shifts. Second, it is plausible that employees take home clean smocks at the end of their shifts, before they go home; however, no witnesses have testified that this is a normal occurrence. To the contrary, Defendants’ expert Dr. Davis testified during deposition and at trial that he did not see anyone taking a smock home at the end of the day in the two separate weeks in which he conducted his study at Millsboro. The workers testified during trial that they all pick up smocks at the beginning of their shifts. Indeed, Dr. Radwin’s videos also confirm that the majority of employees pick up smocks at the beginning of their shifts. Zlotorynski also testified to this effect during depositions.
Third, even if employees do take clean smocks home at the end of the day, employees keep the rest of their PPE in their lockers so they would still need to report to the plant in advance of the start of line time to finish donning all of their PPE. It is quite clear that Mountaire employees did not “actually have a meaningful opportunity to don their protective gear at home.” Martin, 504 F.Supp.2d at 775. The take home option is illusory.
Defendants’ motivation for enacting the smock take home policy also bolsters the conclusion that the take home option is illusory. Tirrell’s email to various company personnel indicated that the smock take-home policy was designed to “effectively eliminate the donning and doffing issue.” This same email also indicated that Mountaire personnel “should have begun moving the hand wash sinks out to the dept areas to delay the ‘first principal activity’ until the line started.” Clearly, the decisions to institute the smock take home policy and moving the sinks closer to the production floor were motivated by Mountaire’s desire to circumvent DOL’s persistent directives that Mountaire must compensate employees for donning and doffing time. The same email thread, however, highlights the fact that the take home option is illusory. Replying to Tirrell’s email, Everett Brown, a Mountaire employee, wrote, “At this point we have talked with each employee and they are signing their name saying they understand they have the option to take the coat or not take the coat. Most are not taking the coat and don’t want it the night before. However as with all their other equipment they have the option.” This exchange elucidates Defendants’ position: that the important thing is that employees have a take home option, and not that the option is meaningful.”