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eLABORate: Fifth Circuit Says Employer Not Liable for Pre-Shift Wait Time Under FLSA

November 15, 2017

In a decision rendered on November 9, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that an employer was not liable under the Fair Labor Standards Act (“FLSA”) for failing to compensate its employees for pre-shift wait time.

The FLSA requires an employer to pay its employees minimum wage and overtime compensation for each hour worked over 40 hours in each workweek. Following the enactment of the FLSA, Congress passed the Portal-to-Portal Act that served to clarify which activities are to be considered compensable under the FLSA and thus, to be included within the 40 hours each work week.

According to the Portal-to-Portal Act, an employer does not have to compensate an employee for the following activities: “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 29 U.S.C. § 254(a). For instance, this is why an employer is not obligated to compensate an employee for his or her travel time to and from his or her home to the workplace.

However, the United States Supreme Court has determined through a series of cases that certain activities that occur either before or after a regular work shift are not exempt under the Portal-to-Portal Act and should be considered compensable time under the FLSA. The jurisprudential test that has been established is whether the activity in question is integral and indispensable to the employee’s principal activity that he or she is employed to perform. See Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 517-18 (2014).

In Darwin Keith Bridges, et al., v. Empire Scaffold, L.L.C., No. 16-41493 (5th Cir. Nov. 9, 2017), a group of employees who were employed to erect and dismantle scaffolding at a refinery on behalf of Empire Scaffold, L.L.C. (“Empire”) filed suit under the FLSA against Empire alleging that they were not paid for compensable time. Empire required its employees to take buses from a parking lot 20 or 30 minutes away from the refinery to the refinery every morning on a first come, first served basis. The buses began running 2 hours prior to the employees’ scheduled start time with the final bus leaving 45 minutes prior to the start time. The employees’ argued, among other things, that they should have been compensated for the time that they spent every morning at the refinery waiting for their shift to begin after getting dropped off by the bus. In defense, Empire argued that it was not required under the FLSA and the Portal-to-Portal Act to compensate the employees for this time.

As framed by the Fifth Circuit, the compensability of the pre-shift wait time of the employees “under the Portal-to-Portal Act turns on whether this wait time was integral and indispensable to the principal activities which they were employed to perform.” According to the Court, the employees’ principal activities in this case included erecting and dismantling scaffolding, attending safety meetings, and completing joint safety analysis paperwork.

As a result, the Court found that the time spent waiting for the principal activities to begin in the morning was not in and of itself integral and indispensable to the employees’ principal activities as “[t]he waiting itself was neither tied to nor necessary to the erection and dismantling of scaffolding—the work that the [employees’] were employed to perform.” The Court further noted that the employees did not claim that they participated in principal activities during this pre-shift time. For example, one employer stated that he used this time to smoke and another stated that he would spend the time chatting with colleagues. In conclusion, the Court held that the preliminary wait time was not intrinsic to the employees’ principal activities and thus, it affirmed the district court’s ruling that it was not compensable time under the FLSA and the Portal-to-Portal Act.