Preliminary Time: When is it Compensable?

Article by Ellen C. Kearns¹

Speaking at the mid-winter meeting of the American Bar Association’s Federal Labor Standards Committee, Department of Labor ("DOL") Associate Solicitor, Steven Mandel, told Committee members that the Office of the Solicitor has obtained settlements approaching $5 million for call-center employees owed additional compensation for "off the clock" time spent logging onto computers, reading updates, and preparing to make or take calls. Mandel noted that in such workplaces, employees are not paid until they take their first phone call, even if they are responsible for tasks before the first call is taken or after the last call is taken. "Ironically, we see the same practices that we’ve seen in meat and poultry plants, but this time in ‘new economy’ jobs," Mandel said. ² These "new economy" settlements are in the multi-million dollar range with such industry giants as Cingular Wireless and T-Mobile.

As Mandel noted at this meeting, "off the clock" cases are not new to Fair Labor Standards Act ("FLSA") litigation. In the late 1990’s, there were a series of cases involving first the meat packing industry, and then the poultry industry, on what types of preliminary and concluding activities should be compensated. These cases have generally resolved that the following preliminary/concluding activities are compensable unless the amount of time spent in such activities in de minimis: (1) donning and doffing of personal protective clothing and equipment; (2) the cleaning of equipment, both before and after a shift, and the time spent in line waiting for the wash station to become available; and, (3) time spent in line waiting to exchange knives used in the performance of an employee’s job.

On February 22, 2005, the United States Supreme Court granted certiorari to consider the question of whether the time employees spend walking to and from workstations, after donning and doffing personal protective equipment, is compensable under the FLSA, as amended by the Portal-to-Portal Act.

Before I develop the issues presented to the Supreme Court, I want to give a brief background of the law in this area.

A. Definitions of "Employ"

The FLSA does not define the term "work." 29 U.S.C. § 203(g) provides that the term "employ" includes "to suffer or permit to work."³ Id. (emphasis supplied). Under DOL regulations, time that is spent for the benefit of the employer, with the employer’s knowledge, and that is considered a "principle activity" of the employee, is considered to be hours worked.⁴ Principal activities include all tasks that are an integral part of the employee’s job.⁵

B. Judicial Construction of "Hours Worked"

In Tennessee Coal, Iron & Railroad Co. v. Mascada Local 123,⁶ the United States Supreme Court stated that employees subject to the FLSA must be paid for all time spent in "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."⁷

Two years later, the Court modified this ruling in Anderson v. Mount Clemens Pottery Co.⁸ and stated that there need not be exertion at all – that when the employee is required to give up a substantial measure of his or her time and effort, the time is hours worked. Consequently, the court in Mt. Clemens held that time spent walking to work on the employer’s premises after time cards had been punched constituted compensable work time.⁹

C. The Portal-to-Portal Act

The Supreme Court’s decision in Mt. Clemens prompted Congress to enact the Portal-to- Portal Act. Congress estimated that the ruling in Mt. Clemens, together with the ruling in Brooklyn Saving Bank v. O’Neil,¹⁰ and the fact that there was no federal statute of limitations on FLSA claims, created potential liability in the billions of dollars and that, uncorrected, would result in an adverse impact on the economy.¹¹

The Portal-to-Portal Act abolished all claims for minimum wage or overtime for any preliminary or postliminary activity engaged in by an employee before May 14, 1947 unless there was an "express provision of a written or non-written contract" or a custom or practice in effect at the place of employment that made such activity compensable.

Section 4 of the Portal-to-Portal Act applied to prospective claims and defined noncompensable activities to include "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities" and "activities which are preliminary to or postliminary to"¹² the principal activities. Section 4 specified that these activities would be compensable only if there was an express provision in a written or non-written contract that included them as compensable activities or if it was the custom or practice at the place of employment to include them as compensable activities.¹³ However, if activities such as changing clothing and preparing machinery were an integral part of the principal activity, then such activities would be compensable under the FLSA.¹⁴

In November 1947, the Wage and Hour Administrator at the DOL issued a Portal-to- Portal Bulletin in which he described, by example, what is meant by the words "integral part of a principal activity:"

(1) In connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease, or clean his machine or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.

(2) In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employees. Such preparatory activities, which the administrator has always regarded as work and as compensable under the Fair Labor Standards Act, remain so under the Portal Act, regardless of contrary custom or contract.¹⁵

According to DOL regulations, the activities that are included as an integral part of a principal activity are those closely related activities that are indispensable to its performance. The DOL cites, as an example, an employee in a chemical plant who cannot perform his or her principal activities without putting on certain clothes. Under that circumstance, changing clothes at the beginning and end of the workday at the employer’s premises would be an integral part of the employee’s principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his or her principal activities, it would be considered as an uncompensated "preliminary" or "postliminary" activity rather than a principal part of the activity.¹⁶

Two cases decided by the United States Supreme Court further illustrate the types of activities which are considered an integral part of an employee’s job. In Steiner v. Mitchell,¹⁷ the time employees spent changing their clothes and taking showers was deemed to be compensable because the employees worked in a battery plant where the manufacturing process involved the extensive use of caustic and toxic materials, and the shower and clothes changing were considered an integral and indispensable part of the employee’s principal activities. Similarly, in Mitchell v. King Packing Co.,¹⁸ the time that knifemen in a meatpacking plant spent sharpening their knives at the end of the workday was considered an integral and indispensable part of their principal activities.¹⁹

1. Clothes Changing

Metzler v. IBP, Inc.,²⁰ involved a meat slaughter and packing employer that did not record and compensate its meat-processing employees for time spent performing various preand post-shift activities. The district court made the following findings as to the average reasonable amount of time to perform activities which it ultimately found to be compensable: (1) three minutes to wait for and exchange knives; (2) three minutes to put on and take off personal protective equipment; (3) three minutes of wait time at wash stations to clean protective equipment; (4) two minutes for post-shift cleaning of protective equipment; and, (5) three minutes of pre-shift and post-shift compensable walk time.

On appeal, the employer challenged the district court’s factual finding that three minutes was a reasonable amount of time for employees to don and doff the required safety equipment, asserting that 1.5 minutes was a reasonable amount of time, and that the district court failed to consider that employees removed the safety equipment while waiting to wash. The United States Court of Appeals for the Tenth Circuit held that the district court’s estimate was not clearly erroneous, and that the employer’s own time study estimates accounted for a separate amount of time to perform both functions.

In another meatpacking case, Reich v. Monfort,²¹ the parties agreed that the periods of time spent on pre- and post- shift activities would be compensable unless they met the de minimis exception. The district court had concluded that ten minutes per day should be compensated. Although both the trial and the appellate courts found that the time would be administratively difficult to record, the court of appeals affirmed the district court’s decision to find the time compensable. The Tenth Circuit found that the total amount of time involved, both on a per-employee basis (ten minutes per day over three years), and on an aggregate basis for all of the employees as a group, would properly be considered substantial, and that the regularity of the activities involved also weighed against a de minimis finding.

In Anderson v. Pilgrim’s Pride Corp.,²² the court held, after trial, that employees were not entitled to compensation for donning and doffing sanitary clothing and required equipment and cleaning various items of clothing worn in a chicken processing plant. The court found that the employees wore clean outer garments to protect their street clothes from becoming soiled, and the donning and doffing of work clothes did not involve any physical or mental exertion and took only seconds. For these reasons, the court determined that the time was not compensable. In addition, the issue had been rejected in collective bargaining negotiations, and the noncompensability of these activities was both practice and custom in the industry.

On the other hand, in De Ascencio v. Tyson Foods, Inc.,²³ a federal district court in Pennsylvania denied summary judgment to the employer, finding issues of material fact regarding whether the FLSA required compensation for the time poultry processors spent donning, doffing, and sanitizing protective clothing and equipment before and after shifts. The court stated that the activities were compensable, notwithstanding the Portal-to-Portal Act’s exclusion of preliminary and postliminary activities if they are "integral and indispensable" parts of the employee’s principal activity. Citing significant disagreement among jurisdictions that have considered the issue, the court declined to issue a judgment on the merits.

In May 2002, Perdue Farms agreed to settle a DOL lawsuit involving the donning and doffing of safety clothing and equipment.²⁴ Although the DOL estimated that approximately 25,000 current and former Perdue workers will be paid about $10 million as a result of the consent decree, Perdue said that it would take about six months for an amount to be determined.²⁵

The DOL then filed a new lawsuit against poultry producer Tyson Foods, Inc.,²⁶ seeking to recover back wages for employees not currently being compensated for time spent donning, doffing and sanitizing the plant.

In August 2002, Perdue Farms agreed to settle a private lawsuit concerning donning and doffing for $10 million. This suit was filed by chicken processing workers seeking compensation for time spent putting on and taking off protective gear and cleaning sanitary equipment.²⁷ The settlement in the private lawsuit will cover some of the same workers who were covered by the DOL settlement in May of that year. Up to 60,000 current and former employees who worked on assembly lines in Perdue’s 18 chicken processing plants are eligible to opt-in to the settlement.²⁸ The settlement agreement was approved by the United States District Court for the District of Delaware on October 17, 2002.²⁹ The settlement order included payment of some $2.5 million in attorney’s fees and approximately $500,000 in costs to be taken from the $10 million total settlement.³⁰

2. "Shift Change" Activities

In AFSCME Local 889 v. Louisiana,³¹ the United States Court of Appeals for the Fifth Circuit held that a 15 minute roll-call period for field officers at state correctional facilities was compensable. The state had argued that the roll-call period was offset by a compensated lunch period. However, the court concluded that, under the circumstances of the case, the state was required to compensate the officers for the lunch period and, therefore, the field officers were entitled to additional compensation for the roll-call period.

Similarly, in Schwertferger v. Village of Sauk,³² the court held that the mandatory 15 minute roll-call period was clearly compensable time, but it was unclear whether the department compensated the officers for that time. The court held that roll-call time could be set off against meal periods, if meal periods were found to be non-compensable time. However, the court found that a genuine issue of material fact existed with regard to the compensability of the officers’ lunch period.

In Robertson v. Board of County Commissioners³³ a federal district court held that genuine issues of material fact existed as to whether sheriff’s deputies were denied compensatory time for pre-shift briefings where evidence existed to show that the sheriff’s deputies were told to record pre-shift briefings on their time records, but no individual time records were submitted.

3. Training and Care of Police Dogs

Courts continue to hold that training and care of police dogs after hours is compensable. In Holzapfel v. Town of Newburgh, the United States Court of Appeals for the Second Circuit stated that such activities could be considered work time because "walking, feeding, training, grooming and cleaning up are integral and indispensable parts of the handler’s principal activities." ³⁴ The court further noted that the determination of the amount of time actually spent in such activities was a question for the jury, but that time spent by the employee for personal pleasure was not compensable.

In DeBraska v. Milwaukee,³⁵ a federal district court in Wisconsin also addressed the question of whether the time canine officers spent caring for their dogs outside work was compensable. The city compensated the officers for 30 minutes of canine care per day. Referring to Holzapfel v. Town of Newburgh, the court posed three questions: (1) did the city require the officers to spend more than 30 minutes per day performing canine care; (2) was the time spent beyond 30 minutes per day for the officer’s benefit or for the city’s benefit; and (3) did the city know that the officers spent more than 30 minutes per day performing canine care? Based on the police officers’ evidence that the city required them to care for their dogs in a certain way, combined with evidence that the officers spent more than 30 minutes per day caring for their dogs, the court granted partial summary judgment to the officers on this issue.

Other cases involving the care of canines include: Mayhew v. Wells (holding that dogcare time was compensable); ³⁶ Rudolph v. Metropolitan Airport Commission (agreement as to the amount of time to be spent caring for the dogs was reasonable, officers not entitled to additional compensation);³⁷ Karr v. City of Beaumont, (holding that officers’ care and transportation of dogs and related maintenance of the police vehicles was an integral and indispensable part of the officers’ duties, but denying summary judgment because a material issue of fact remained in a dispute over the amount of damages);³⁸ Helmers v. Vestal, New York (off duty care of dogs is compensable, but there were genuine issues about time spent on "making and receiving dog-related phone calls");³⁹ and, Jerzak v. City of South Bend (travel to and from the veterinarian might be compensable, but whether it was compensable or whether the time was de minimis were issues for the jury).⁴⁰

As noted above, the United States Supreme Court granted certiorari to consider the question of whether the time employees spend walking to and from workstations, after donning and doffing personal protective equipment, is compensable under the FLSA, as amended by the Portal-to-Portal Act. Two circuits, the First and the Ninth had ruled differently on this issue.

In Alvarez v. IBP, Inc.,⁴¹ the United States Court of Appeals for the Ninth Circuit concluded that the donning and doffing time was compensable, and that after donning and doffing protective clothing and equipment, the time spent walking from the clothes changing location to the employee’s place of work was also compensable, on the theory that the walking time was "all in a day’s work" [29 C.F.R. §785.38]. "There is nothing in the statute or regulations that would lead to the conclusion that a workday may be commenced, then stopped while the employee is walking to his station, then commenced when the walking is done."⁴²

The First Circuit Court of Appeals in Tum v. Barber Foods, Inc.⁴³ squarely rejected this reasoning, concluding that even if donning and doffing is an integral part of the employees’ principal activity, walking that occurs after such donning—but prior to arrival at the work station—and before the doffing—but after departure from the work station—is not compensable. Relying on a different provision of the regulations than the Ninth Circuit, the First Circuit held that:

"…walking time is not automatically excluded from the purview of the Portal-to-Portal Act by virtue of following compensable doffing. By stretching the traditional understanding of a primary activity to cover donning and doffing in very limited circumstances, Congress was not creating an avenue to circumvent the Portal-to-Portal Act’s exemption of preliminary or postliminary activities."⁴⁴

At the district court level, the federal magistrate judge in Tum distinguished the case of Anderson v. Pilgrim’s Pride Corp., supra, and allowed a group of chicken processing plant workers to proceed with their claim that they should be compensated for time spent donning and doffing sanitary and safety clothing.⁴⁵ "I conclude that the donning and doffing of clothing and equipment required by the [Company] or by government regulations, as opposed to clothing and equipment which employees choose to wear or use at their option is an integral part of the Plaintiffs’ work for the [Company]."⁴⁶ The magistrate judge acknowledged that "this is admittedly a close question,"⁴⁷ and that other courts have "held otherwise in cases that appear close on their facts to the claims presented here."⁴⁸

A trial was then held on the issue of whether the time spent "donning and doffing" required clothing constituted "work" and whether such time was de minimus. The jury found that the time spent donning and doffing was compensable, but de minimus. Tum and the other employees appealed to the First Circuit. Barber Foods cross-appealed, arguing that the district court erred in ruling that the donning and doffing of required clothing and equipment is an integral part of the employee’s work and is not excluded from compensation under the Portal-to- Portal Act as preliminary or postliminary activity.

After an initial review by a First circuit panel, the decision was affirmed.⁴⁹ Plaintiffs filed a petition for a rehearing and the First Circuit asked the Secretary of Labor to file an amicus brief in the matter. After receiving the Brief from the Secretary of Labor, the First Circuit granted rehearing, but affirmed.

In affirming the decision of the trial court, the First Circuit agreed that donning and doffing any gear required by Barber Foods or government regulations was "integral to the principal activity."⁵⁰ The First Circuit cited with approval Alvarez v. IBP, Inc. ⁵¹ However, the First Circuit went on to say that donning and doffing any non required gear should not be compensable: "These optional items …are worn by the employees at their own discretion [and]…are not compensable."⁵²

With respect to the walking time issue, the First Circuit rejected the view of the Labor Department finding that the Labor Department’s position would "undermine" the Portal-to-Portal Act. "This extension [of the Labor Department] overreaches and would lead to the absurd result that an employee who dons required equipment supplied by the company at 5:00 am at his own home, starts his workday for FLSA purposes at 5:00 am—even though he is not required to punch in to work and does not punch in until 8:00 am," Judge Juan R. Torruella wrote.⁵³ "This plainly cannot be what Congress intended."⁵⁴ The First Circuit held that the time spent waiting in line for protective gear and to punch in at the time clock was preliminary activity excluded by the Portal Act.

IBP Inc filed a petition for review of the Ninth Circuit decision in March, 2004. In its petition for review, IBP, Inc noted the split in the circuits over whether employees are legally entitled to compensation for "walking time" between compensable pre- and post-shift clothes changing and their workstations. In addition, IBP, Inc claimed that there was significant confusion among the courts about the extent of deference due to informal labor Department opinion letters concerning ambiguous statutory terms.

On May 3, 2004 the U.S. Supreme Court invited the Solicitor General to file a brief in the IBP, Inc v. Alvarez case. Shortly thereafter, in July, Tum filed a petition for review of the First Circuit decision in Tum v. Barber Foods, Inc.⁵⁵, and a month later, Barber Foods filed a crosspetition asking the justices to rule on the compensability of donning and doffing clothing and equipment under the Portal-to-Portal Act.

In October, the Labor Department submitted a brief to the Supreme Court discouraging the justices from accepting the Alvarez case for review. The Labor Department acknowledged the importance of the issues, but said the justice’s ruling would not change the case’s outcome in Alvarez. The Labor Department suggested that a better case to review on the issues was Tum v Barber Foods.

On February 22, 2005, the United States Supreme Court partially heeded the Labor Department’s recommendation and decided to consolidate and review one of the questions presented by these two cases. That question was walking that occurs between compensable clothes-changing time and the time employees arrive at or depart from their actual work stations constitutes compensable time under the FLSA, as amended by the Portal-to-Portal Act. IN addition, the Court agreed to resolve the following question: Do employees have a right to compensation for time they must spend waiting at required safety equipment distribution stations?⁵⁶

The justices decided not to rule on (1) what level of judicial deference is due to opinion letters issued by the Labor Department; and (2) whether the time spent actually donning and doffing the required clothing and protective equipment is compensable under the Portal to Portal Act.⁵⁷ The Supreme Court allowed one hour for oral argument in its October 2005 term.

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