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2726 S. Brentwood Blvd. St. Louis MO 63144

The Compensability of Work Time: Before, During, and After the Workday

Our St. Louis, Missouri law firm has extensive knowledge and experience nationwide with issues related to the compensability of time spent at work, including pre- and post-shift work and work during unpaid breaks. We are familiar with decades of law and legal principles regarding the compensability of work time throughout the workday, as well as the ever-shifting nature and location of the workplace given the widespread use of technology in the modern economy. We understand the details of your work and workplace matter. We take the time to listen to, and understand, the challenges affecting our clients and help them understand their potential rights and obligations under the law.

FLSA cases often involve claims of unpaid work at some point during the workday, whether during a break or at the beginning or end of the day, resulting in alleged failure(s) to properly pay overtime and/or minimum wages. Courts have addressed such claims for decades. From these cases, it is clear there are a host of issues and principles with which both employers and employees should be familiar in order to better understand the nature and scope of their respective rights and obligations.

Portal-to-Portal Act: Preliminary, Postliminary, and Principal Activities

Soon after the FLSA came into law in 1938, a flood of unpaid wage claims and litigation ensued. Given broad interpretations of the FLSA by courts (including the United States Supreme Court), some employees started filing lawsuits that claimed entitlement to pay for the time spent by them traveling to and from work. Congress thereafter passed the Portal-to-Portal Act in 1947, as an amendment to the FLSA, to address this issue of "wholly unexpected liabilities."

The Portal-to-Portal Act made certain types of activities that were "preliminary" or "postliminary" to the workday not compensable—that is, those activities that occurred before or after the "principal activities" that started and ended the workday. An FLSA regulation issued shortly after the passage of the Portal-to-Portal Act in 1947, however, made clear that the Act "does not affect the computation of hours worked within the 'workday' proper, roughly described as the period 'from whistle to whistle,' and its provisions have nothing to do with the compensability under the [FLSA] of any activities engaged in by an employee during that period." 29 C.F.R. § 790.6. And it clarified that "workday" refers to "the period between the commencement and completion on the same workday of an employee's principal activity or activities." This principle became known as a the "continuous workday rule."

Since then, many litigants and courts have wrestled with the meaning of the Portal-to-Portal Act and the questions of whether and when "preliminary" or "postliminary" activities are compensable. In 1956, the United States Supreme Court clarified that "preliminary" and "postliminary" activities that were "an integral and indispensable part of a principal activity" were, in fact, compensable. Steiner v. Mitchell, 350 U.S. 247, 254-56 (1956).

In 2005, the United States Supreme Court revisited this issue and detailed its historical development. See IBP, Inc. v. Alvarez, 546 U.S. 21, 25-30 (2005). Alvarez involved claims by employees that the time spent by them "donning" and "doffing" protective clothing on the employer's premises before engaging in productive labor was compensable. Id. at 21. In finding the activity compensable, the Court held "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under…the Portal-to-Portal Act." Id. It further concluded, based on the continuous workday rule, that "any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity" is compensable. Id.

However, in 2014, the United States Supreme Court expanded upon these principles in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014). Integrity Staffing involved claims by warehouse workers that time spent by them undergoing, or waiting to undergo, security screenings was compensable. Id. at 35. The Court clarified that "[t]he integral and indispensable test is tied to the productive work that the employee is employed to perform"—not simply activities that the employer required or activities for the benefit of the employer. Id. at 36 (emphasis original).

Given this clarification, the Court held "an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Id. at 37. In light of this holding, the Court concluded the security screening time at issue was not compensable because "Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers." Id. at 35.

Following the recent decisions of Alvarez and Integrity Staffing, many Courts of Appeals have continued to wrestle with these principles and have reached varying conclusions about the compensability of preliminary and postliminary activities. See, e.g., Aguilar v. Management & Training Corp., 948 F.3d 1270 (10th Cir. 2020) (finding time spent by detention officers undergoing security screenings compensable under the FLSA). And, here in Missouri, the Western District Court of Appeals recently affirmed a similar finding after a trial resulted in a jury verdict in excess of $100 million in favor of correctional officers who claimed they were not paid for time undergoing security screenings. While these individual time periods each day may seem insignificant when viewed alone, they can add up to a substantial amount of alleged unpaid time and wages when considered across thousands of individuals over several years.

What is clear following all these relatively recent decisions is that the details about the work and workplace really do matter in determining whether time spent at work at the beginning or end of the day is compensable. It is imperative to pay attention to these details because, if they are ignored, history has shown they can result, and have resulted, in substantial liabilities.

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Our firm knows the in's and out's of decades of complicated legal developments in this area of law. With this knowledge, we will help you understand, assert and defend your rights under the law. Please do not hesitate to contact us directly to regarding such an issue, by phone at (314) 645-4100 or by email at kevin@dolleylaw.com.

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The Law Offices of Kevin J. Dolley represents clients in labor law, employment law and employment discrimination matters throughout the State of Missouri, including St. Louis, St. Louis County, St. Charles County, Boone County, Jefferson County, Lincoln County, Jackson County, Phelps County, Franklin County, Ste. Genevieve, St. Clair and the Cities of St. Louis, Kansas City, St. Charles, O'Fallon, Lake St. Louis, Hillsboro, Troy, Clayton, Rolla, Columbia, Jefferson City, Kirksville, Farmington, Cuba, Augusta, Union, Maryland Heights, Cape Girardeau and Springfield.

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