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2nd Cir.: Reiterates Carrying 20 LB. Bag Does Not Transform Otherwise Non-Compensable Commute Time Into Compensable Time; Applyies “Predominate Benefit Test”
Clarke v. City of New York
Revisiting an issue it has previously ruled on, the 2nd Circuit held that an employee’s required carrying of 20 pounds of materials each day to and from work, during his or her daily commute does not transform otherwise non-compensable travel time into compensable work hours.
“This case falls squarely under the previously decided Singh v. City of New York, 524 F.3d 361 (2d Cir.2008). In Singh, a group of inspectors with the Fire Alarm Inspection Unit of the New York Fire Department brought a claim under the Fair Labor Standards Act (“FLSA”), as amended by the Portal-to-Portal Act, demanding compensation for their commuting time because they were required by their employer to transport and protect inspection documents. Id. The collective weight of their materials was between 15 and 20 pounds. Id. at 365.
We analyzed the claim in two parts, looking first to whether plaintiffs were entitled to compensation for the entire commute and, if not, whether they were entitled to compensation for the additional commuting time that resulted from their transport of these materials. Id. at 366-67. For the first part of the analysis, we applied a “predominant benefit test,” asking whether the employer’s restrictions hindered the employees’ ability to use their commuting time as they otherwise would have. Id. at 369. We determined that the inspectors’ commute was not materially altered by their document transport responsibilities, and thus they were not entitled to compensation for the entire commute. Id. at 370. We then looked to the second part of the test to determine if the additional commuting time that resulted from the transport of the documents was compensable. Id. While noting that the additional time was time spent “necessarily and primarily for the benefit of the City” and thus was compensable, we looked to a three-part test to determine if such compensable time qualified as de minimis. Id. The three factors were: “(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis.” Id. at 371. Under this test, we determined that the additional commuting time was de minimis as a matter of law. Id. Thus, none of the plaintiffs’ commuting time was compensable under the FLSA. Id. at 372.
The facts of the case before us are materially indistinguishable from Singh. Plaintiffs in this case, like Singh, are responsible for the transport of a 20-pound bag of equipment. This 20-pound bag, however, does not burden the plaintiffs to such a degree as to make the City the predominant beneficiary of their commute. Their responsibility is limited to transporting the bag; there are no other active work-related duties required during the commute. Transporting a bag in a car trunk, or at plaintiffs’ feet on a train or bus, allows them to use their commuting time as they wish. To the extent that the bag adds time to their commute, we find, just as in Singh, that such time is de minimis and non-compensable.”
W.D.Wash.: Flight Attendants Not Entitled To Compensation For Training Time Which Was For Their Benefit
Ulrich v. Alaska Airlines, Inc.
The parties agreed to the applicability of and the Court applied, the six-factor test adopted by the Department of Labor in several Opinion letters, to determine whether trainees are employees under the FLSA.
The six factors which must be met in order for the trainees not to be employees are:
1) the training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2) the training is for the benefit of the trainees;
3) the trainees do not displace regular employees, but work under close observation;
4) the employer that provides the training derives no immediate advantage from the activities of the trainees; and on occasions his operations may actually be impeded;
5) the trainees are not necessarily entitled to a job at the completion of the training period; and
6) the employer and the trainees understand that the trainees are not entitled to wages for the time spent training.
The Court granted Alaska summary judgment, finding that Alaska’s training program meets all six requirements of the six-factor Department of Labor test. The Court therefore followed the American Airlines and TWA cases from the Fifth and Eighth Circuit Courts of Appeals in ruling that the flight attendant training program conducted by Alaska Airlines does not constitute compensable “work” under the FLSA. Additionally the Court held that the training time does it constitute work within California for which compensation is due under California labor law.