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Whose Time Is It Anyway? Key Decisions Clarify the Meaning of Compensable Time

Late last year, the U.S. Supreme Court issued an opinion in Integrity Staffing Solutions v. Busk, providing some clarity regarding whether employees must be compensated for certain "mandatory" activities engaged in before they start and after they finish their workday. The plaintiffs, contract workers assigned to an, Inc. fulfillment facility, accused their employer, Integrity Staffing Solutions, of violating the Fair Labor Standards Act (FLSA) by failing to compensate them for the time they were required to spend each day going through a theft-prevention security checkpoint before leaving the warehouse. The Ninth Circuit Court of Appeals, when presented with the issue, held that the security screenings were compensable employment activities, reasoning that "the screenings were 'necessary' to the employees' primary work as warehouse employees and done for Integrity Staffing's benefit."

In a unanimous decision, the U.S. Supreme Court concluded that the Ninth Circuit erred in its decision by incorrectly focusing on "whether an employer required a particular activity." In its opinion, the Supreme Court relied on the Portal-to-Portal Act, which Congress passed in 1947 to create an exemption for "activities which are preliminary to or postliminary to [one's] principal [employment] activity." The Court explained that "principal activity" under the Act should be interpreted as an activity that is "integral and indispensable to the principal activities that an employee is employed to perform." Elaborating further, the Court explained that "intrinsic elements" of one's principal activities are those activities that "an employee cannot dispense if he is to perform his principal activities."

Explaining that although some activities, such as "the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were 'toxic to human beings,'" satisfy the intrinsic-element test, that was not the case with respect to post-shift security screenings. Addressing the nature of the work performed by the employees at issue, i.e., the contract workers assigned to the, Inc. facility, the Court noted that these employees were hired to "retrieve products from warehouse shelves and package those products for shipment . . . [not] to undergo security screenings." Accordingly, the time spent going through the security check was deemed a noncompensable postliminary activity.

The distinction between compensable and noncompensable time was also addressed by a federal district court judge in Gibbs v. City of New York. Claiming that the New York City Police Department violated the FLSA, the Gibbs plaintiffs argued that they were entitled to overtime compensation stemming from their attendance at mandatory counseling and treatment sessions that occurred after regularly scheduled work hours. Relying on Integrity Staffing, the court concluded that "the counseling sessions do not amount to 'work'" and "even if they were 'work' . . ., [the counseling] would amount to noncompensable postliminary activities." As a result, the court granted the city's motion for summary judgment.

While the Court's decision in Integrity Staffing was arguably narrowly tailored to address the compensability of time spent in security check points, it (and the Gibbs decision) nevertheless helps clarify which types of activities associated with an individual's work qualify as noncompensable preliminary and postliminary activities in contrast to those activities that are intrinsic to an employee's principal activities and for which the employee must be compensated.

These decisions are also a good reminder for employers to periodically review their wage and hour policies to ensure that their employees are paid for all those job duties that are intrinsic to the employees' principal job activities. 

© 2020 Vedder PriceNational Law Review, Volume V, Number 77


About this Author

Kaitlyn Fallon, Labor Attorney, Vedder Price Law Firm

Kaitlyn E. Fallon is an Associate at Vedder Price and a member of the Litigation and Labor & Employment practice groups in the firm's New York office.

While in law school, Ms. Fallon served as the Executive Notes and Comments Editor of theBrooklyn Law Review and was a member of the Trial Division of the Moot Court Honor Society. Ms. Fallon also served as a student member on the Federal Courts Committee of the New York City Bar Association.

212) 407 7779
Jonathan A. Wexler, Vedder Price Law Firm, Labor Employment Attorney

Jonathan A. Wexler is a shareholder at Vedder Price and a member of the firm’s Labor and Employment Practice Area of the New York office. He represents private-sector, not-for-profit, and public-sector clients in litigation matters in federal and state courts, and before such administrative agencies as the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the National Labor Relations Board, and the New York Department of Labor.