As labor/employment practitioners know, the Fair Labor Standards Act, governing the payment of minimum wages and overtime, is silent as to the definition of "work." In the Spring 2011 issue of the ABA Journal of Labor and Employment Law, Richard Alfred and Jessica Schauer argue that recent case law and a Department of Labor (DOL) Administrator's Interpretation has potentially opened the floodgate for claims regarding de minimus but arguably "integral and indispensible" activities, such as checking or sending emails, prior to the start of the workday. See Alfred and Schauer,
Continuous Confusion: the Workday in the Modern Economy.
Introduction
Typically, disputes over the workday have concerned the time spent "donning and doffing" protective gear, and case law has not clarified matters substantially but only obfuscated. Then, in June of 2010, the DOL joined the debate but issuing an Administrator's Interpretation to narrowly define "clothes" for the purpose of a FLSA provision allowing employers to exclude from compensation, pursuant to collective bargaining agreement, that spent "changing clothes or washing at the beginning or end of each workday." The Interpretation defines clothes to exclude protective gear of any
sort.
Historical Legal Background
Historically, work for purposes of the law was defined by its common meaning as involving physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 US590 (1944) (concluding "work" included time miners spent in underground tunnels traveling to active mine areas).
Later the same year, the Court revisited the issue in a very different context--whether employees should be compensated for time spent on-call at the employers facilities to respond to fire alarms. There, the Court concluded that whether such time was compensable turned on whether the employers were "engaged to wait, or ... waited to be engaged." Armour Co. v. Wantock, 323 US 126 (1944), and Skidmore v. Swift & Co., 323 US 134 (1944).
Several years later, the Court revisited the matter again and expanded the definition of work to conclude time spent by factory workers traveling from the entrance to their work station was compensable. Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946). Clemens did, however, note an exception: the de minimus doctrine, "which permits employers to disregard certain small increments of otherwise compensable time." See Alfred and Schauer (citing Clemens and other cases, and noting a de minimus amount of time is usually five minutes, but has been found to be as high as twenty minutes).
The following year, Clemen's holding regarding travel time was overturned by the Portal-to-Portal Act, which limited minimum wage liability for traveling to or from the "actual place of performance of the principal activity or activities," or for activities that are only "preliminary to or postliminary to said principal activity or activities." A few years after than, the FLSA was also amended to permit employers and unions to bargain over time spending changing clothes or washing at the beginning or end of each workday.
In 1957, the Court reviewed the Portal-to-Portal Act and concluded that activities that are "integral and indispensible" to a principal activity are also principal activities, and therefore not excluded fro compensation by the Portal-to-Portal Act. Steiner v. Mitchell, 350 US 247 (1957) (concerning time spent changing work clothes and showering to limit exposure to toxic chemicals). There the lay of the law remained for about 50 years until it issued IBP, Inc. v. Alvarez in 2005, 546 US 21. Alvarez held that "performance of integral and indispensable activities render subsequent activities, even those that are not themselves integral and indispensable, a compensable part of the continuous work day." See Alfred and Schauer, citing Alvarez. Alavarez had concluded that time spent walking to work station after donning protective gear was covered, although time spent waiting to don it was not.
DOL Interpretation and Future Applications
Despite the narrow application of the DOL Interpretation, the authors foresee two problems with it. First, they do not believe the definition will
fly with the courts generally because it rejects the dictionary
definition and is at odds with the weight of circuit court decisions.
This is significant because normally, administrative rules and
interpretations are entitled to some deference, "but only to the extent
that the courts find their reasoning to be persuasive." Id.
Second, and more seriously, the authors worry the last sentence of the Interpretation somehow adds a "wrinkle" that will undermine the de minimus exception by "insist[ing] that activities excludable from compensation may nonetheless start the continuous workday." The Interpretion states that some otherwise excludable activities may be a "principal activity" that triggers the start of the day," making all "subsequent activities, including walking and waiting ... compensable." The authors seem to have momentarily forgotten their own fine legal history review, however, and the fact that it was actually Alvarez that made that pronouncement first. Nonetheless, it is worth addressing the concern on its merits.
The authors worry, specifically, that this new line of reasoning will swallow the de minimus exception. For instance, they note that booting up a computer would require negligible exertion under Tennessee Coal, but is nonetheless indispensible. The authors also make the pitch that de minimus work such as checking emails or voice mails from home may, under the new law, make compensable the following commute to work. In support, the authors point to Dooley v. Liberty Mutual Insurance Co., 307 F.Supp. 2d 234 (D. Mass. 2004), which held insurance appraisers' commute to the first on site inspection was made compensable where employer required appraisers to check their email and voice mail, prepare their computers for use, and return phone calls, prior to leaving home for their first appointment.
However, I think the authors are letting their fear and imagination run away with them a bit. Obviously, the Dooley work was quite substantial, and it was also formally required as part of the employees' job duties. Except for the most activist and liberal court, it is not likely to be used to support doing away with the well established de minimus exception. Finally, I am sure most courts will recognize that it is a far cry from de minimus to "not itself integral and indispensible," and it should be an easy thing for courts to adjust their thinking to add a qualitative component to de minimus.
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