cbaReport-May14 - page 11

May 2014CBAREPORT
l
11
feature article
thePortal-to-PortalAct to limit the
compensabilityof activities likewalking
or traveling toworkor other activities
that arepreliminary toor postliminary
toprincipal activities.As such, Congress
carvedout the statutory exception for
changing clothes orwashing as a subject
of collectivebargaining.
Justice Scalia, joinedby all of the
Justiceswith Justice Sotomayor taking
exception toone footnote, determined
that protective gearwas clothes, and
donning anddoffingprotective gearwas
changing clotheswithin themeaningof
Section203(
o
).TheCourt deemed safety
glasses and earplugs tobenon-clothing,
but found that the timeputtingon and
takingoff thesenon-clothes itemsdidnot
need tobe subtracted from thenoncom-
pensableperiodof time spent changing
clothes.Ultimately, theCourt affirmed
the SeventhCircuit’s decision that time
spent donning anddoffingprotective
gearwasnoncompensable according to
theparties’ collectivebargaining agree-
ment. Justice Scalia concluded that “it
ismost unlikely thatCongressmeant
§203(o) to convert federal judges into
time-studyprofessionals,” and as such,
the issueof compensationwas properly
left to theprocess of collectivebargain-
ing.
It isnoteworthy that the
Sandifer
opinionoverrules aSixthCircuit deci-
sionwhich interpreted themeaningof
Section203(
o
) differently. In
Franklin
v. KelloggCo.
, the court examined a
claimby a groupof current and former
employees for back-pay for time spent
donning anddoffinguniforms andpro-
tective equipment, aswell as time spent
walking to and from the locker room and
time clock.
12
The SixthCircuit affirmed
thedistrict court’s decision that donning
anddoffing standard equipment, like
hairnets, safetyglasses, and earplugs,
constituted changing clothes andwas
noncompensablebasedupon custom
or practiceunder theparties’ collective
bargaining agreement.The SixthCircuit
specifically foundprotective gear tobe
clothes, as theyprovidedprotection to
thebody.Andbecause the employer had
a long-standingpolicy against paying for
time spent donning anddoffinguniforms
and equipment, therewas a customor
practiceof non-payment under abona
fide collectivebargaining agreement;
time spent donning anddoffingwas
excluded fromhoursworked.
As for the time spentwalking to and
from the locker room and time clock,
the SixthCircuit held that changing
clotheswas aprincipal activitybecause
itwas an “integral and indispensable”
part of the employees’ work. Because the
employer required employees towear a
uniform andprotective equipment and
because theuniform and equipment
primarilybenefited the employer, don-
ning anddoffingwas aprincipal activity.
Therefore, the SixthCircuit determined
that the employeesmaybe entitled to
compensation for pre-donning andpost-
donningwalking time.
In light of
Sandifer
, the activityof
changing clothingwouldnot be aprinci-
pal activity; itwouldnot constitutehours
worked.Accordingly, time spentwalking
to and from the locker room inorder
todon anddoff theprotective equip-
mentwouldnot likelybe compensable
preliminary andpostliminary activities.
Despite theCourt’s ruling, theneed for
fact-specific inquiries intopreliminary
andpostliminary activities still exists.
Employersmust closely considerwhich
activities are integral and indispensable
to theprincipal activities performedby
employees. Employersmust be “time-
studyprofessionals.”Fortunately, the
SupremeCourtwill likelyprovide ad-
ditional guidanceonpreliminary and
postliminary activities later this year.
InMarch, the SupremeCourt granted
certiorari to
Integrity Staffing Solutions,
Inc. v. Busk
, inorder todeterminewheth-
er time spent in security screenings is
compensable time.
13
This case arises from
an appeal of aNinthCircuit decision,
involving a groupof former employees
who sought back-pay for time spent
passing through security clearance at the
endof each shift andduringmeal period.
The employeeswere required to remove
wallets, keys, andbelts andpass through
metal detectors.The security clearance
process could takeup to twenty-five
minutes eachday.Thedistrict court held
that the employees failed to state a claim
under theFLSAor state law.
TheNinthCircuit first examined
the employees’ claim for compensation
for time spent passing through security
clearance at the endof each shift.The
court concluded that the employees
stated a valid claim for relief under the
FLSA and state law.The court noted that
thedistrict court shouldhave assessed
whether the security clearancewas a
principal activityunder the “integral and
indispensable” test.The court next con-
sideredwhether the employees stated a
valid claimunder theFLSA for shortened
lunchperiods. Because the employees did
not allege that theyperformedworkdur-
ing lunch, theNinthCircuit affirmed the
dismissal of this claim.
The
Busk
decisionhas thepotential
toprovide additional,much-needed
guidance as to the compensabilityof
preliminary andpostliminary activities.
Although the SupremeCourt limited
compensabilityof preliminary and
postliminary activities in
Sandifer
, it
is uncertainwhether thiswill become
a trend in futureFLSAdecisions.The
regulations state that certain activities
like checking inor out orwaiting in
linewouldnot ordinarilybe regarded as
integral parts of aprincipal activityor
activities.
14
But, unlike changing clothes
orwashing, there isno express statu-
tory exclusion for activities like security
checks or shift transitions. Further, the
existenceof a customor practiceunder
abona-fide collectivebargaining agree-
mentmaybe adeterminative factorwhen
examining the compensabilityof certain
preliminary andpostliminary activities.
Until there is further clarification as to
what is compensableworking time, em-
ployersmust continue to carefully review
theworkday andmonitor preliminary
andpostliminary activities.
Mongenas isa seniorconsultantatClemans,Nelson
andAssociates, Inc., aconsultingfirm specializing in
labor relationsandhumanresourcemanagement.
1 29U.S.C. § 207(a)(1) (2012).
2
Id.
3 29U.S.C. § 203(g).
4 29C.F.R. § 790.6(b) (2012).
5 29U.S.C. § 254(a).
6 29C.F.R. § 785.25.
7
IBP, Inc. v.Alvarez,
546U.S.21,37 (2005).
8 29U.S.C. §§ 254(b)-(d).
9 29C.F.R. § 785.6.
10 29U.S.C. § 203(o).
11 571U.S.__,134 S.Ct.870 (2014).
12 619 F.3d 604 (6thCir.2010).
13
Busk v. Integrity Staffing Solutions, Inc
.,713 F.3d 525 (9th
Cir.2013),
cert. granted, __
U.S.L.W.__ (U.S.Mar.3,
2014) (No.13-433).
14 29C.F.R. § 785.24.
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