Should You Get Paid To Prepare For Work Under The Federal Labor Standards Act?
Updated: Apr 4, 2019
Generally, the Federal Labor Standards Act (“FLSA”) mandates that companies pay certain employees overtime hours when they work over 40 hours in a week. The FLSA offers broad protection and is interpreted liberally. However, it can be tricky to understand whether pre-shift activities such as changing into a uniform, preparing tools, driving to a site or setting up a station count towards those 40 hours.
In general, all activities that an employee performs for an employer's benefit count as work and therefore, the employee must be paid to do it.
On the other hand, activities deemed to be “de minimis” do not qualify as work and therefore the time spent doing these activities does not count towards the hours worked. So how do you know if your pre-shift activities are de minimis?
Courts making this inquiry consider three factors:
1. administrative difficulty of recording the time it takes to perform the activities;
2. the cumulative amount of compensable time; and
3. the regularity at which the additional work is performed.
Activities That Are Integral To Your Job Count As Work Hours
In De Asencio v. Tyson Foods, Inc., workers who were required to put on protective work uniforms before beginning a shift and to take off the protective work uniforms and before leaving they were required to clean themselves. 500 F.3d 361 (3rd Cir. 2007). The employees were not paid for doing those activities.
There, the 3rd circuit found that these tasks are not de minimis and must be compensated. Specifically, the court found that “[g]enerally, preliminary and post-liminary activities remain compensable so long as [they] are an integral and indispensable part of the principal activities.”
29 C.F.R. § 790.8(c) provides: "Among the activities included as [integral] are those closely related activities which are indispensable to [the job's] performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity.”
The Tasks Need Not Be Difficult To Count As Work
Further, laborious exertion is not necessary in order for pre-shift and post-shift duties to be compensable. This means that the activities need not be difficult to count as work time. Additionally, when the pre-shift/post-shift work “concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.”
Likewise, in Lugo v. Farmer’s Pride, employees of a chicken processing plant sought compensation for time spent putting on and taking off protective gear and clothing (donning and doffing). This took them about 17.5 minutes per day. 802 F. Supp. 2d 598 (E.D. Pa. 2011). The Court denied summary judgment to both parties saying that even though the 17.5 minutes was a disputed estimate, this amount of time and the type of work spent during that time was not as a matter of law de minimis.
Activities That Take 10 Minutes Are Likely Not De Minimis
In Gonzalez v. Bustleton Servs., the court found that landscapers who loaded shovels, rakes and a wheelbarrow into trucks and drove to the work site should be compensated for the time it took them do perform those tasks. 2010 WL 1813487 (E.D. Pa. March 5, 2010). The court reasoned that an employer may not arbitrarily decide not to pay workers for time, however small, in the employee's fixed or regular working time that he or she is regularly required to spend on duties assigned to them. The Gonzalez court ruled that 10 minutes is not a de minimis amount of time especially when the other facts weigh in favor of the plaintiff.
Time Spent On Performing Tasks That Benefit The Employer Is Likely Compensable
Similarly, in Reich v. Brenaman Elec. Serv., electrical contractors wanted to be paid for loading trucks with tools and driving them to the work site. WL 164235 (E.D. Pa. March 28, 1997). The electrical contractors who drove company vehicles, which contained tools necessary for their jobs, to job sites in the mornings were held to be working during that time.
The court reasoned that “[h]ad all employees driven straight from home to the job site every day, with no one driving the trucks and equipment to the job sites, the employees could not have fulfilled their tasks at the site.” The company needed to get the trucks and equipment to and from the sites, and the employees' activities in the mornings and evenings facilitated those company needs. Therefore, the employer was ordered to pay their employees for loading, gassing, and driving the trucks to the work site.
“Work not requested but suffered or permitted is work time [and, so long as] the employer knows or has reason to believe that [the employee] is continuing to work, the underlying reason is immaterial.” Camesi v. Univ. of Pittsburgh med. Ctr., U.S. Dist. LEXIS 40571 (W.D. Pa. May 14, 2009) (internal citations omitted). An activity counts towards hours worked “if it is done at least in part for the benefit of the employer, even though it may also be beneficial to the employee." Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir. 1974) (driving a truck carrying needed tools and supplies to job site was compensable work even though employee would have quit without the ability to use the truck).
Moreover, the voluntariness of the employees' actions is irrelevant; the important question is whether the activity is performed with the knowledge and approval of the employer and for the employer's benefit.
Activities That Take 2-3 Minutes May Be Found To Be De Minimis
Conversely, in Williams v. Securitas Sec. Servs. USA, security guards wanted to be compensated for pre-shift activities including receiving station instructions, checking equipment, and meeting with supervisors. The time varied between a few seconds and 2 - 3 minutes per day. 2011 WL 3629023 (E.D. Pa. Aug. 17, 2011). The security guards also argued that when they were assigned to certain stations (not every station), they were required to do some things to set up for work that should have counted as working time.
The court found all of the pre-shift activities mentioned by the security officers to be de minimis and held that the guards did not need to be compensated for the time they spent doing those activities. The court found it dispositive that the time of a few seconds to 2-3 minutes was not enough to be necessary to count. It further found that since the setting up of certain stations once in a while (not daily) was also de minimis because it was not performed on a regular basis.
Employers Beware And Employees Learn Your Rights
Since the FLSA is applied broadly, employers should be careful about refusing to pay their employees for time employees spend performing activities that prepare them for their work tasks. This is especially true where the tasks being performed are mandated by the employer and benefit the employer.
If you think you or your co-workers may be performing work that should be compensated and your employer is refusing to count that time as compensable hours, you may have a claim for the money you have earned that an employment law attorney can help you receive. If this has been happening for some time, you may be entitled to many hours of back pay, possibly even at overtime rates. Contact Mr. Gordon to discuss your situation and receive the money you have earned.
Roy H. Gordon Law, LLP
Roy H. Gordon, Esquire, MBA
telephone: (856) 209-3425