Recently, the Solicitor of Labor, Howard Radzely was asked if there had been any "preliminary time" cases filed in the nanotechnology area. He responded that he was not familiar with any specific cases that had been filed in that industry, but as with any other industry that requires employees to engage in pre-work activities, employers should be aware of the rules regarding when the workday begins. Radzely's comments followed a presentation by the Solicitor on the Supreme Court arguments in IBP Inc. v. Alvarez and Tum v. Barber Foods, Inc. These cases address whether time spent walking and waiting in conjunction with donning and doffing safety gear should be compensable under the Fair Labor Standards Act.
The question asked of the Solicitor is a reminder to all nanotechnology companies that if you require your employees to engage in certain activities before the start of their work day, time spent on such activities may have to be compensated if the activities are an "integral and indispensable" part of the employee's job. In the cases argued before the Supreme Court, the workers were required to don and doff safety equipment and sanitary clothing at chicken and beef processing companies. The parties agreed that these activities were an integral part of their principal activities, but disputed whether the workers should be paid for the time they spent walking between their workstations and the gear-distribution stations, and waiting to obtain and dispose of the gear. A decision in the case could be reached quickly, as Supreme Court Justice Sandra Day O'Connor participated in the deliberations.
In the recent past, the Department of Labor (DOL) has settled several law suits involving "preliminary time." These cases involve "call centers" in which the workers were not paid for time spent "waiting for the computer equipment to power on, logging onto the network, and bringing up programs necessary for their work." Humana Inc. recently settled such a case for $1 million involving 2500 workers. In January, Cingular Wireless agreed to pay $5.1 million to settle similar allegations, and T-Mobile USA agreed to pay $4.8 million to 20,000 workers who were not compensated for time spent before starting the workday.
A week after the Supreme Court arguments, a meeting of the National Employment Lawyers Association was held in Boston. Plaintiff attorneys attending the conference spoke about the impact of the Supreme Court cases. One attorney noted that in work situations where non-exempt employees are expected to review reports at home, check e-mail or computers, or print out job tasks before leaving for work, a Supreme Court decision about when the workday begins could affect the compensability of "commuting time." Plaintiff attorneys also noted that the Supreme Court cases call into question many compensable time issues such as on-call time, meal periods and break-time.
In sum, this is a good opportunity for nanotechnology companies to take the opportunity to review their personnel practices regarding "preliminary activities" that occur before the start of the work day. If such activities are an "integral and indispensable" part of an employee's work day, time spent on them must be compensated.
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