July 12, 2020

Volume X, Number 194

July 10, 2020

Subscribe to Latest Legal News and Analysis

July 09, 2020

Subscribe to Latest Legal News and Analysis

Refinery Workers’ Pre-Shift Wait Time Not Compensable, Fifth Circuit Holds

Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA.  Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).

As part of a major expansion of the Port Arthur oil refinery, Empire Scaffold was hired to erect scaffolding at the refinery for a period of about 18 months.  To control traffic and maintain security at the refinery, each morning Empire’s employees were required to ride buses from a remote parking lot to inside the refinery grounds and were dropped off a few hundred yards from the location of their scaffolding duties.  Based on the run times of the buses, employees would arrive on the grounds anywhere from 15 to 90 minutes before their shift began at 7:00 a.m.  Other than signing in upon arrival, the employees were free to do whatever they chose between arrival at the site and the beginning of the shift.  In fact, the plaintiffs testified that they typically would spend this time smoking, socializing with co-workers or simply doing nothing.  The plaintiffs undisputedly were paid for all of their time once the shift commenced but filed suit claiming, among other things, that their pre-shift wait time likewise was compensable.  The district court granted summary judgment to Empire on this claim and the employees appealed.

Affirming the trial court’s determination, the Fifth Circuit noted that, since enactment of the Portal to Portal Act of 1947, two primary groups of activities are considered exempt from pay claims under the FLSA:  (1) walking, riding or traveling to and from the actual place of performance of an employee’s principal activity or activities; and (2) activities which are “preliminary to or postliminary to” such principal activities.  “Principal activities,” added the Court of Appeals, includes those that are an “integral and indispensable part” of those activities (quoting Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014).   In this case, the principal activities of the employees were erecting and dismantling scaffolding and these activities, as well as those activities “integral and indispensable” to these tasks.  The Court held the he time spent waiting was not compensable because it was neither “tied to nor necessary to the erection and dismantling of scaffolding – the work that the [plaintiffs] were employed to perform.”

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 331


About this Author

Jeffrey Brecher, Jackson Lewis, Management Arbitration Lawyer, Labor Litigation Attorney

Jeffrey W. Brecher is a Principal in the Long Island, New York, office of Jackson Lewis, and is Practice Group Leader of the firm's Wage and Hour practice. He has litigated hundreds of cases, defending management at arbitration, before state and federal administrative agencies and at trial.

Mr. Brecher regularly advises clients on compliance with various state and federal laws affecting the workplace, including discrimination and related claims arising under Title VII, Family and Medical Leave Act, Americans with...

Justin R. Barnes, Jackson Lewis, Federal Employment Lawyer, Discrimination Allegations Attorney

Justin R. Barnes is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He represents employers in federal and state courts and before administrative agencies on a variety of labor and employment related issues, including collective and class action wage and hour disputes, labor arbitrations, allegations of discrimination, and employment-related contract disputes.

Mr. Barnes’ practice is focused primarily on defending complex wage and hour class and collective actions in state and federal courts across the country. Mr. Barnes has recently assisted clients in defending state and federal wage and hour claims in Georgia, Arkansas, Oklahoma, New York, North Carolina, Illinois, Missouri, and Florida, among others.