What's work got to do with it? Dressing, breaks and cups of coffee may not sound like work, but may be compensable

HR Magazine, Nov, 2007 by Jonathan A. Segal

First in a two-part series

The concepts underlying the Fair Labor Standards Act (FLSA) are relatively simple. If an employee is not exempt from overtime, you must pay the person the minimum wage for all working hours up to 40, plus time and a half of the employee's regular rate for all hours worked in excess of 40 in a given workweek. That's it. No big deal, right? If only it really were so straightforward.

While relatively simple in theory, the FLSA is deceptively complex in reality. Seven- and eight-figure judgments and settlements for good-faith mistakes have become painfully common.

This article, the first in a two-part series on common FLSA errors, examines three common areas of employer exposure relating to what is "working time" for nonexempt employees who are on-site:

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* When getting ready for work is working time.

* When breaking from work is working time.

* When waiting to work is working time.

What does compensable work have to do with these activities? Often, under the FLSA, the answer is "plenty."

Getting Started

The law is clear that an employer must pay employees not only for their principal activities but also for preliminary activities at the beginning of the day and postliminary activities at the end of the day, as long as the preliminary and postliminary activities are integral to the employees' principal activities. If a preliminary or postliminary activity is found to be integral, then generally every activity after or before it is compensable under the "continuous workday" rule.

This issue recently reached the U.S. Supreme Court in, of all places, a slaughterhouse. In IBP v. Alvarez (546 U.S. 21 (2005)), the Supreme Court agreed that the donning (putting on) and doffing (taking off) of unique personal protective equipment constituted preliminary and postliminary activities that were integral to the employees' principal activities.

As a result, the Supreme Court held that the compensable workday under the FLSA included the time that covered employees spent walking from changing areas where they donned their personal protective gear to the production area, and the time they spent walking back to the changing areas at the end of a shift before they doffed their personal protective gear.

If your employees don't don or doff anything, you may be tempted to ignore the Alvarez decision. Don't give in to that temptation, however, because the Alvarez decision has very broad potential application beyond the facts of the case.

For example, assume food servers are required to wash their hands at the beginning of the day and after any break. The hand-washing clearly would be integral to the principal activity of food service. Accordingly, the employees would have to be paid for their hand-washing time. Further, they also would have to be paid for the walking time to and from the washing area to the working area.

In fact, in some instances, the compensable preliminary activities may be performed at home, and thus travel to work from home, ordinarily noncompensable, may become compensable.

Narrow Exception

The Department of Labor (DOL) recognizes that there may be a "de minimis" exception with regard to the duty to pay for preliminary and postliminary activities, even if they are integral to an employee's principal responsibilities. The DOL recognized this very narrow exception most recently in a post-Alvarez opinion letter with regard to donning and doffing "nonunique gear," such as hairnets (DOL Wage and Hour Advisory Memorandum No. 2006-2).

However, relying on the de minimis exception, with regard to nonunique gear or anything else, is dicey for at least three reasons:

* In determining what is de minimis, the DOL looks not at each task in isolation but rather at the amount of time spent on tasks in the aggregate. For example, even if the time it takes to don a hairnet is de minimis on any given day, it may not be de minimis when this time is aggregated for the week or month. Plus, the regulations provide that an employer may be excused from paying for de minimis time only if it would be administratively difficult to record the time, which is often not the case.

* Even if the amount of time is de minimis in the aggregate under federal law, a de minimis exception may not apply under state law.

* Regardless of whether there is a de minimis exception under federal and the applicable state law, the cost of proving that the time was de minimis in a class or collective action usually far outweighs the potential cost savings.

The bottom line: Rely on the de minimis exception if necessary in litigation, but don't build it into your wage and hour compliance plans.

What if the task should require only modest time but the employee's actual time is anything but modest? Can the employer put a cap on the time it will pay? Can the employer dock for excessive time?

The answer to both questions is an unequivocal "no." If the employee spends too much time on preliminary or postliminary tasks, the employer can and should manage the employee's performance by way of counseling, discipline or discharge. What the employer cannot do is manage the performance by way of the employee's pay.