Complying with wage and hour laws seems fairly simple on its face. Unless they are exempt, all employees must be paid at least minimum wage for all hours worked. However, determining what is “work,” or what constitutes paid time, is not always as clear as you might think. In fact, “work” is not defined in the Fair Labor Standards Act (FLSA), the federal statute governing minimum wage and overtime and their exemptions.
In a recent U.S. Supreme Court decision, the Court tried to clarify the definition of work and address a problem created by the 1947 Portal-to-Portal Act. The Portal-to-Portal Act exempts from coverage under the FLSA any walking from a site at the workplace to the location of the employee’s “principal activity or activities” as well as activities that are “preliminary or postliminary” (prior to and after) to the “principle activity or activities” of the employee.
For example, employees who punched a time clock and then walked to their job posts were not required to be paid for the time during which they walked before they began their daily work at their post. The consolidated cases, IBP, Inc. v. Alvarez and Tum v. Barber Foods, Inc., were decided by the Supreme Court in November. The issue was whether meat-processing employees had to be paid for the time they spent walking from the locker room through the processing plant to the production floor after they put on their protective clothing.
The court had already determined in prior decisions that putting on and taking off (donning and doffing) protective clothing is part of the principal activity of an employee when it is indispensable to the principal activity. Therefore, it had to be paid time. Now, the question was whether the time spent waiting to put on the clothing and then walking to the principal activity after putting on the clothing (but before beginning the processing work) was paid time.
The Supreme Court found all time after donning the protective gear was paid time. The donning of protective safety gear (in some cases this included Plexiglas arm shields and chain mail chest protectors) was part of the principal activity of the meat processing employees; thus when they put the gear on, the work day began. All the time following donning the protective clothing was part of the paid workday. However, time spent walking to the locker room before donning the protective gear and time spent waiting to don protective gear would still be portal-to-portal time that is excluded, as it is not part of the principal work activity or integral and indispensable to processing meat.
In the IBP case, the protective gear was required by the employer and by government regulation. However, the outcome would have been different if the gear had simply been clothing the employees choose to change into but was not required for the work. In such cases, the workday would not begin with the donning of clothing, but would begin when the employee began the work activity.
Federal regulations interpreting the Portal-to-Portal Act give other examples where travel time must be paid. For example, when an employee is required to report at a meeting place to receive instructions, to perform other work, or to pick up or carry tools, the travel time to and from the designated place is part of the day’s work and must be counted as time worked. Waiting time or travel time before the principal activity may also be compensable if there is an agreement between the employer and employees, or if it is a practice in the industry to treat that time as paid.
As a general rule, employers can take away two main lessons from IBP and the Portal-to- Portal Act:
Donning and doffing of equipment. If the clothing or equipment is required by the employer or by government regulation, or if the clothing and equipment is an integral part of the work, time spent putting it on and taking it off must be paid. If changing clothing and putting on equipment is an option that employees choose on their own, the time is not required to be paid.
Travel time. Once the workday begins, travel time contained within the workday will be paid. If employees are traveling between job sites, are picking up tools, or are required to report to a site before beginning work, the travel time between sites is paid time.
— Christine M. Meadows,
Jordan Schrader PC