The Fair Labor Standards Act (FLSA) requires employers to pay a minimum wage to nonexempt employees for every hour worked. Due to the nature of some workplaces, it can be difficult for employers to determine whether time spent by an employee is actually time worked, especially when the employee is performing a task that does not directly benefit the employer, such as travelling to or within a workplace. This article highlights some issues in defining a “workday” that employers are increasingly dealing with in the contemporary work environment, and illustrates how the law has treated different situations.
Congress attempted to shed some light on how to define time worked by passing the Portal to Portal Act in 1947. This law exempted any time spent on travelling to a principal activity, or on preliminary or postliminary activities outside of a workday, from automatically counting as hours worked under the FLSA. At the time, workers generally followed the “whistle to whistle” rule, where the workday started and ended at the blow of a whistle. However, the workplace has drastically evolved since then, and employers today constantly face situations in which it is unclear whether an employee is performing an activity within a “workday” or is merely involved in a preliminary or postliminary activity that is incidental to the job. The judicial outcome of each workday case is highly dependent on the details of the facts and do not necessarily apply in all situations.
What is a “workday”?
According to the United States Supreme Court, a workday begins the moment an employee engages in an activity that is an “integral and indispensable” part of the first principal activity of the day. The workday ends as soon as the final principal activity of the day has been completed.
The U.S. Department of Labor (DOL) stated that under normal conditions, “checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks” are merely preliminary to (occurring before) or postliminary to (occurring after) the paid workday. However, in some situations, these activities may become a part of the workday if they are “integral and indispensable” parts of an employee’s principal activities.
The general rule is that an activity is does not qualify as “indispensable” if it could be removed altogether without inhibiting the employee from performing job duties. The nature of an employee’s job duties may require that he or she don or doff (change into or out of) work gear. On several occasions, the courts have held changing donning or doffing required protective gear in a worksite locker room is merely a convenience to the employee and would not be indispensable to the job. However, if the equipment or gear is “unique” and indispensable to the job, the donning or doffing of that gear would be a part of an employee’s workday. Courts have found chain armor suits to be “unique” to a meat processing plant where large mechanical blades were used, but gear such as boots, helmets, goggles, or radios are generally deemed not to be unique.
Washing or showering may also be a part of the workday if it is integral and indispensable to the job. Washing dangerous, toxic chemicals off of employees’ clothing and skin was found to be indispensable to working in a battery plant, but showering on the job after a physically exerting day in construction may not result in the same conclusion. Other preparatory acts tools may sometimes be indispensable to job duties, such as a butcher sharpening knives before each shift.
It is possible for an activity to be ”indispensable,” even though the activity solely benefits the employer. Recently, the Supreme Court found that employees working for Amazon were not engaged in their workday when they waited for 25 minutes at a security checkpoint at the end of every shift. It was clear that the checkpoint was solely to protect the employer from losing property to theft, but the work was not indispensable to the employees’ primary activities in the warehouse.
Why is defining the start and end of the workday so important?
Due to the technicalities of the workday timeline, employers may be required to compensate all time within a workday, even if employees are engaged in for an activity that is not directly work-related. In the Amazon case, for instance, if an employee had another principal activity to perform after the security checkpoint, the Court may have found that the workday has not yet ended, making the wait time compensable.
To illustrate this point, if employees change into unique gear in a worksite locker room, but that locker room only accommodates a couple of employees at a time, some employees may have to wait considerable time to get changed themselves. The waiting time to enter the locker room is therefore prior to the first principal activity and therefore not compensable. However, at the end of the day, the waiting time to change before exiting the workplace would be still within the workday, as the final principal activity of the day has not yet been completed, and employees must be compensated for that time.
In another case, Dooley v. Liberty Mut. Ins. Co., 307 F.Supp.2d 234 (D. Mass. 2004), an insurance company employee had driven to work, and from there answered phones, responded to client e-mails, and reported to several sites to take photographs and write appraisals. After returning home, the employee was required to continue to write to clients via e-mail and to send the appraisals and other materials to the employer. Because the employee performed activities from home that were a part of his normal duties, the workday started when he arrived at work, but did not end until after he was home and completed the work. The drive to work was therefore not compensable time, but the commute back home and the work performed there was held to be compensable.
How might my policies be affected by these rules?
Because every situation is highly fact-specific, employers should not assume any ruling for or against another employer will equally apply to their own workplace. The precedents of the courts should instead alert employers of potential issues with their current policies and help to present the proper facts and questions surrounding these issues to an attorney. Further, the law requires that if a contract, custom, or current practice of the employer dictates that certain time or activities are compensable, the Portal to Portal Act will not apply to those times or activities.
Employers should diligently review any possible time that they require of employees, but do not pay them for. The time that employees must be paid for under the FLSA may not necessarily be fully reflected by the hours reported on the punch clock. If an employee reports to work at a store at the time requested by his employer, but no tasks are available to be completed yet, that waiting time is compensable within the workday. If the same employee punches out at the conclusion of a shift, but is ordered not to leave until the store has been cleaned up, the time would be also be compensable, but will not be logged by the punch clock.
To most effectively reconcile time punched in with compensable time, employers must first identify which activities are indispensable to, and which are merely incidental to, the primary activities of the employees. Time-keeping mechanisms or methods, such as punch clocks, must be positioned in a location that allows employees to punch in immediately before the first principal activity, and punch out after the final principal activity, in order to record all compensable time and maintain compliance with the FLSA.