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 the 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 to 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 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.
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.
Compensability of Travel, Waiting, and On-Call Time
Dolley Law, LLC regularly handles claims, questions, or concerns regarding the compensability of time spent by employees waiting or traveling as part of their work. Such time is often referred to as travel time, waiting time, or on-call time. The FLSA and its accompanying regulations provide guidance as to how such issues should be interpreted. Our attorney knows these laws and regulations well and can help guide you toward a better understanding of your potential rights and obligations in relation to them.
What are “hours worked”?
A fundamental rule of the FLSA is that “employees must be compensated for all hours worked.” See 29 C.F.R. § 778.223. Under the FLSA, “hours worked” will include:
- All time during which an employee is required to be on duty or to be on the employer’s premises or at a prescribed workplace; and
- All time during which an employee is suffered or permitted to work whether or not he is required to do so.
“Thus, working time is not limited to the hours spent in active production labor, includes time given by the employee to the employer even though part of the time may be spent in idleness. Some of the hours spent by employees, under certain circumstances, in such activities as waiting for work, remaining ‘on call,’ traveling on the employer’s business or to and from workplaces, and in meal periods and rest periods are regarded as working time and some are not.”
Agreements whereby an employer only provides for payment of hours spent in productive work (and not work hours spent in waiting time, time spent in travel on the employer’s behalf, or similar nonproductive time) do not comply with the FLSA because “such nonproductive working hours must be counted and paid for.” 29 C.F.R. § 778.318.
The “hours worked” rule is equally applicable to work performed away from an employer’s premises or job site(s). See 29 C.F.R. § 785.12. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” Id. “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” 29 C.F.R. § 785.13.
When is “travel time” compensable?
To determine whether travel time is compensable, one must consider the kind of travel involved. See 29 C.F.R. § 785.33. The Portal-to-Portal Act excluded from “hours worked” time spent commuting to and from the employer’s worksite—that is, “ordinary travel from home to work.” See 29 C.F.R. §§ 785.34, 785.35, 790.7(c) (distinguishing ordinary commuting from other types of work travel). For example, “the use of an employer’s vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered principal activities when the use of such vehicle is within the normal commuting area for the employer’s business or establishment and is subject to an agreement on the part of the employer and the employee.” 29 C.F.R. § 785.34.
However, “travel by a repairman from one place of where he performs repair work to another such place…is not the kind of ‘walking, riding, or traveling’ described” in the Portal-to-Portal Act. 29 C.F.R. § 790.7(c). Similarly, “where an employee travels outside his regular working hours at the direction and on the business of his employer, the travel would not ordinarily be ‘walking, riding, or traveling’ of the type referred to” in the Portal-to-Portal Act. Id. (providing example of “traveling employee whose duties require him to travel from town to town outside his regular working hours”). In these scenarios, “the question of whether the travel time is to be counted as worktime under the [FLSA] will continue to be determined by principles established under [the FLSA], without reference to the Portal Act.” Id.
Outside of the ordinary commuting covered by the Portal-to-Portal Act, FLSA regulations address different scenarios with respect to the compensability of travel time. See 29 C.F.R. §§ 785.35 - 785.41. For example, “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38. In particular, “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.” Id.
Similarly, “[t]ravel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on non-working days.” 29 C.F.R. § 785.39. And “[a]ny work which an employee is required to perform while traveling must, of course, be counted as hours worked.” 29 C.F.R. § 785.41.
When is “waiting time” compensable?
The particular facts and circumstances of a given situation will dictate whether “waiting time” is compensable under the FLSA. 29 C.F.R. § 785.14. This determination “involves ‘scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged.’” Id. Ultimately, the determination must be made in accordance with common sense and the general concept of work or employment. Id.
FLSA regulations provide some general examples of “on duty” and “off duty” situations with regard to waiting time. 29 C.F.R. §§ 785.15, 785.16. Like the question on the compensability of “on-call” time, the answers to these examples center around, and hinge upon, whether the employee was able to use the time period in question “effectively for his own purposes.” Id.; 29 C.F.R. § 785.17. If not, this time effectively “belongs to and is controlled by the employer” and thus the time is compensable. Id.
When is “on-call time” compensable?
FLSA regulations also comment on the compensability of time spent while “on call.” 29 C.F.R. § 785.17. In particular, “[a]n employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’” Id.; see also 29 C.F.R. § 553.221(c) (“Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work”). However, “[a]n employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.” Id.
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