cbaReport-May14 - page 10

10
l
May 2014CBAREPORT
feature article
T
heFairLabor StandardsAct
(“FLSA”) requires employers to
compensatenonexempt employ-
ees at a rateof one andone-half times
their regular rateof pay for anyhours
worked in excess of forty in a sevenday
workweekorworkperiod.
1
Simplyput,
employersmust pay certain employees
overtimepay.While this tenet ofwage
andhour law is easy tounderstand, it is
not always easy to apply.Oneof themain
challenges in the areaof overtime com-
pensation is
discerning
what is, and
what isnot,
compen-
sableworking
time.
Ingeneral, compensableworking
time should include all scheduled and
nonscheduledhoursworked in a seven
day, 168-hour period.
2
Hoursworked
include all time that an employer suffers
or permits an employee towork.
3
Thus,
under theFLSA “hoursworked” is an
extremelybroad term.ThePortal-to-
PortalAct, complementary legislation
to theFLSA, provides some framework
for determininghoursworked.Under
thePortal-to-PortalAct, theworkday
is defined as theperiodbetween com-
mencement and completionof an
employee’s principal activityor ac-
tivities.
4
Theworkday includes all time
within that periodwhether ornot the
employeewas engaged inwork through-
out the entireperiod.Accordingly, rest
periods andmeal breaksmaybepart of
theworkday.However, hours ofwork
doesnot include (1) time spentwalk-
ing, riding, or traveling to theplaceof
performanceof the employee’s principal
activityor activities or (2) time spent on
activities preliminary toor postliminary
to aprincipal activityor activities.
5
Preliminary activities, performed
prior to theworkday, andpostliminary
activities, performed subsequent to the
workday, are typicallynoncompensable.
Yet, preliminary andpostliminary
activities are compensablewhen they
are “integral and indispensable” to an
employee’s principal activities.
6
Aprelim-
inaryor postliminary activity is “integral
and indispensable”when it isnecessary
to theprincipalworkperformed and
done for thebenefit of the employer.
Thus,where “integral and indispensable”
to aprincipal activity, preliminary and
postliminary activities become com-
pensableprincipal activities.
7
Further,
preliminary andpostliminary activities
maybe compensableby contract, custom,
or practice.
8
Aside from thePortal-to-PortalAct,
theFLSAdoesnot otherwisedefine
“work”other thanby limited exception.
9
Section203(
o
) states that indetermin-
inghours forwhich an employee is
employed, any time spent in changing
clothes orwashing at thebeginningor
endof eachworkday,whichwas excluded
fromworking timeby express terms or
by customor practiceunder abona-fide
collectivebargaining agreement, shall
be excluded.
10
This statutory exception
andother preliminary andpostliminary
activities havebeen the subject ofmuch
litigation in recentmonths, including
reviewby theU.S. SupremeCourt.
In January, the SupremeCourt decid-
ed
Sandifer v.UnitedStates Steel Corp.
, a
claimby current and former employees
seekingback-pay for time spent “don-
ning anddoffing”protective gear, such as
ahardhat,workgloves, flame-retardant
jacket, and safety
glasses.
11
The
employer argued
that the time
spent donning
anddoffingwas
noncompen-
sable according to theparties’ collective
bargaining agreement.Thedistrict court
had found that donning anddoffing
protective gear fell under the statutory
exceptionof changing clothes. In the
alternative, thedistrict court held that
even if theprotective gearwasnot clothes
under Section203(
o
), the time spentwas
deminimis
and therebynoncompensable.
TheCourt ofAppeals for the Seventh
Circuit affirmed thedistrict court’s find-
ings.
Delivering theopinionof theCourt,
Justice Scalia addressed thehistoryof
theFLSA andFLSA litigation.Henoted
that because theFLSA failed todefine
“work”or “workweek”, preliminary and
postliminary activities like changing
clotheswereonce compensable aswork
under theAct. In light of the expanding
liabilityof employers, Congress passed
By LindsayMongenas
Preliminary andPostliminaryActivities:
What isCompensable?
Preliminary activities, performedprior to theworkday,
andpostliminary activities, performed subsequent to
theworkday, are typicallynoncompensable.
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