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U.S.S.C.: Time Spent By Employees Waiting For and Undergoing Security Screenings Before Leaving Workplace Was Not Compensable Under FLSA
The Supreme Court handed yet another victory to America’s corporations early last month, when it ruled that employers do not have to pay their employees for time spent waiting for and undergoing security screening before leaving the workplace, despite the fact that such screenings are solely for the benefit of the employers. Of note, while the decision reversed a contrary decision from the Ninth Circuit, other Circuits and the DOL itself (which filed an amicus brief in support of employers) have long held that such screenings do not constitute compensable work time.
The Court summarized its decision in its Syllabus, preceding the actual opinion as follows:
Petitioner Integrity Staffing Solutions, Inc., required its hourly warehouse workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Respondents, former employees, sued the company alleging, as relevant here, that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those screenings. They also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the employers and their customers.
The District Court dismissed the complaint for failure to state a claim, holding that the screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and noncompensable. The U.S. Court of Appeals for the Ninth Circuit reversed in relevant part, asserting that postshift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the postshift activities are necessary to the principal work and performed for the employer’s benefit.
Held : The time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA. Pp. –––– – ––––.
(a) Congress passed the Portal–to–Portal Act to respond to an economic emergency created by the broad judicial interpretation given to the FLSA’s undefined terms “work” and “workweek.” See 29 U.S.C. § 251(a); Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949. The Portal–to–Portal Act exempted employers from FLSA liability for claims based on “activities which are preliminary to or postliminary to” the performance of the principal activities that an employee is employed to perform. § 254(a)(2). Under this Court’s precedents, the term “principal activities” includes all activities which are an “integral and indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 252–253, 76 S.Ct. 330, 100 L.Ed. 267. An activity is “integral and indispensable” if it is an intrinsic element of the employee’s principal activities and one with which the employee cannot dispense if he is to perform his principal activities. This Court has identified several activities that satisfy this test—see, e.g., id., at 249, 251, 76 S.Ct. 330; Mitchell v. King Packing Co., 350 U.S. 260, 262, 76 S.Ct. 337, 100 L.Ed. 282—and Department of Labor regulations are consistent with this approach, see 29 CFR §§ 790.8(c), 790.7(g). Pp. –––– – ––––.
(b) The security screenings at issue are noncompensable postliminary activities. To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they “integral and indispensable” to those activities. This view is consistent with a 1951 Department of Labor opinion letter, which found noncompensable under the Portal–to–Portal Act both a preshift screening conducted for employee safety and a postshift search conducted to prevent employee theft. The Ninth Circuit’s test, which focused on whether the particular activity was required by the employer rather than whether it was tied to the productive work that the employee was employed to perform, would sweep into “principal activities” the very activities that the Portal–to–Portal Act was designed to exclude from compensation. See, e.g., IBP, supra, at 41, 126 S.Ct. 514. Finally, respondents’ claim that the screenings are compensable because Integrity Staffing could have reduced the time to a de minimis amount is properly presented at the bargaining table, not to a court in an FLSA claim. Pp. –––– – ––––.
While the decision was lauded by corporations throughout the country, it does not present a significant change to the existing law. However, depending on how the dicta in the decision is read in the future the case could have wide unanticipated consequences going forward. For this reason, and because it is from the United States’ highest court, wage and hour practitioners would be wise to read the entire decision.
Click Integrity Staffing Solutions, Inc. v. Busk to read the entire decision.
S.D.Tex.: Defendant (Group Home) May Not Exclude Sleep Time Where Plaintiff Was Not On Premises for “Extended Periods of Time”
Boman v. All The Little Things Count, L.L.C.
This case was before the court on plaintiff’s motion for summary judgment. As discussed here, plaintiff asserted that the defendants—a group home and it’s individual owner—were not entitled to exclude any time within plaintiff’s scheduled shifts, because plaintiff did not reside on defendants’ premises for an “extended period of time” as defined by the C.F.R. regulations applicable to the situation. Analyzing the applicable regulations and 2 DOL opinion letters, the court concluded that the plaintiff was correct and granted her motion for summary judgment—holding that defendants improperly excluded eight hours per shift, because same were compensable under the FLSA.
Describing the issue before it the court explained:
Plaintiff Lori Boman works as a supervised living provider at a residential group home operated by Defendants All The Little Things Count, L.L.C. and Sandra Graves. She filed this case under the Fair Labor Standards Act (“FLSA”), seeking to be paid for the time she is required to be at the group home, but during which she may sleep. Defendants do not pay Boman for her designated sleep time, even when she has to wake up in the middle of the night to handle an incident. The parties agree on the facts concerning Boman’s weekly work schedule and designated sleep times, but dispute how Department of Labor (“DOL”) regulations apply to those undisputed facts.
Per the stipulated facts:
[Plaintiff] begins work at 3:00 p.m. for four consecutive days, Monday through Thursday, and leaves at 9:00 a.m. the next morning, so that she finishes the work week on Friday. The hours on these shifts between 11:00 p.m. and 7:00 a.m. are deemed unpaid sleep time. During these sleep-time hours, Boman is required to stay on the premises and assist the clients as needed through the night. Defendant provides Boman with her own sleeping quarters to use during the overnight hours, which consist of a sleeping area, a sitting area, a dresser, a nightstand, a small couch, a desk, and a television. According to Boman, her supervisor told her not to record the instances in which her sleep was interrupted during the night to assist residents, interruptions that could last from ten minutes to over an hour.
After a brief discussion of the general rule pertaining to when sleep time is deemed compensable work under the FLSA, the court examined the more specific regulation pertaining to the facts at issue in the case:
Defendants contend that they do not have to pay Boman for her sleep time because she resides at the facility for an “extended period of time” within the meaning of section 785.23. The DOL has issued two interpretations defining what constitutes an extended period of time in the group home industry. The first, a 1981 DOL Opinion Letter, states the following:
[W]here employees are on duty for less than 120 hours in a week, they can be considered as residing on the employer’s premises, provided that they spend five consecutive days or five consecutive nights on the premises. This rule can best be illustrated by concrete examples….
Employees who are on duty from 9 a.m. Monday until 5 p.m. Friday would also be considered to reside on the employer’s premises. Even though on duty for less than 120 hours, they are on duty for five consecutive days (Monday through Friday). The fact that they sleep over only four nights does not matter. Similarly, employees who are on duty from 9 p.m. Monday until 9 a.m. Saturday would also be considered to reside on their employer’s premises since they are on duty for five consecutive nights (Monday night through Friday night).
Opinion Letter Fair Labor Standards Act (FLSA), WH–505, 1981 WL 179033 (Dep’t of Labor Feb. 3, 1981). Defendants contend that Boman’s work schedule satisfies this Opinion Letter’s “five consecutive days” standard because, excluding the sleep time, she is on duty from 3:00 p.m. until 11:00 p.m. on Monday through Thursday, and then from 7:00 a.m. until 9:00 a.m. on Friday. A full reading of the 1981 Opinion Letter, however, casts doubt on whether a single shift that starts on Thursday but carries into Friday would count as two “consecutive days.”
But the Court need not decide the outcome of this case under the 1981 Opinion Letter, because the DOL provided further guidance in 1988 that speaks directly to this question. The 1988 Wage and Hour Memorandum provided “further clarification and guidance as to the conditions under which” the DOL’s Wage and Hour Division “will not require that sleep time [of group home employees] be compensated.” Wage and Hour Memorandum 88.48, 1988 WL 614199 (Dep’t of Labor June 30, 1988). This Memorandum cites the 1981 Opinion Letter and “refine[s] and restat[es] the minimum conditions required” to constitute an “extended period of time”:
An employee will be found to reside on the premises for extended periods of time if:
(1) The employee is on duty at the group home and is compensated for at least eight hours in each of five consecutive 24–hour periods; and
(2) The employee sleeps on the premises for all sleep periods between the beginning and end of this 120–hour period.
Applying 785.23, based upon the above-referenced opinion letters, the court reasoned:
Boman’s schedule does not satisfy the first requirement because she is not “on duty [and] compensated for at least eight hours in each of five consecutive 24–hour periods.” Id. The 24–hour period starts when she reports for duty on Monday at 3:00 p.m. She is compensated for at least eight hours in the first period through 3:00 p.m. Tuesday; at least 8 hours in the second period through 3:00 p.m. Wednesday; at least 8 hours in the third period through 3:00 p.m. Thursday; and at least 8 hours in the fourth period through 3:00 p.m. Friday. But she does not work after that fourth period, and thus is not considered to reside at the group home for an extended period. See Nelson v. Ala. Inst. for Deaf and Blind, 896 F.Supp. 1108, 1112 (N.D.Ala.1995) (holding that plaintiffs did not reside at their employer’s premises for an extended period in part because they did not work “for at least 8 hours in each of five consecutive 24–hour periods”). The examples provided in the 1988 Memorandum further support this determination. See 1988 Memorandum, 1988 WL 614199 (explaining that “an employee who is on duty and is compensated from 6:00 a.m. to 9:00 a.m. and 5:00 p.m. to 10:00 p.m., Monday through Friday, and who sleeps Monday through Thursday nights on the premises, would be considered to reside on the premises for extended periods of time”). The DOL’s 1988 interpretation of its sleep-time regulations therefore demonstrates that Boman was not staying at the group home for a period of time lengthy enough to be considered “extended,” in which the employer’s premises becomes a kind of second home where the employee enjoys considerable “freedom.” 29 C.F.R. § 785.23.
Defendants do not dispute this calculation but instead argue that the 1988 interpretation applies only to “relief workers” and not full-time employees like Boman. Although the 1988 Memorandum does discuss relief workers, even a cursory reading demonstrates that the “five consecutive 24–hour period” requirement applies to full-time employees. The Memorandum begins by addressing the DOL’s policy of “allow[ing] ‘relief’ employees who are provided with private quarters in a home-like environment to be treated the same as ‘fulltime’ employees (i.e. those who either reside on the employer’s premises permanently or for ‘extended periods of time’).” Id. But, the DOL explains, “[a]n essential requirement for this special [relief] position is that a group home have one or more full-time employees who either reside on the premises permanently or ‘for extended periods of time.’ ” So the Memorandum turns to that prerequisite and focuses on when full-time employees are considered to reside “for extended periods.” Id. Indeed, the next sentence cites the 1981 Opinion Letter Defendants rely on, and explains that “it has become clear that further guidance is necessary for employers and employees in the industry.” Id.
If doubt somehow remains about whether the 1988 Memorandum is clarifying the 1981 Opinion Letter on when full-time employees reside for an extended period, the DOL reiterates that “these employees are called ‘full-time’ employees” after citing examples of how the “five consecutive 24–hour period” standard works. Id .; see also id. (further explaining that the Memorandum is talking about requirements for “deduct[ing] sleep time for full-time and relief employees”). And numerous courts have applied the 1988 Memorandum to full-time employees. See, e.g., Nelson, 896 F.Supp. at 1112–13 (relying on the 1988 guidance in deciding whether “non-relief employees” resided on the employer’s premises for an extended period); Lott, 746 F.Supp. at 1085, 1089 (citing the 1988 Memorandum “as defining under what circumstances an employee must be compensated for sleep time” in case involving plaintiffs who worked full time at public group home); Shannon v. Pleasant Valley Cmty. Living Arrangements, Inc., 82 F.Supp.2d 426, 432–33 (W.D.Pa.2000) (examining the 1988 Memorandum in determining whether the parties’ agreement concerning sleep-time compensation was reasonable). Indeed, the 1988 Memorandum’s clarification of the “extended period of time” requirement so plainly refers to full-time employees that the Court has given this defense argument more attention than it deserves.
As such, the court granted plaintiff’s motion and held that FLSA requires compensation for Boman’s time spent at the facility from 11:00 p.m. to 7:00 a.m.
Click Boman v. All The Little Things Count, L.L.C. to read the entire Memorandum and Order.