Let’s talk about preparatory and concluding activities.
A few weeks ago, we talked about the concept of “suffer and permit” and what a broad definition the courts had given to that term. So, here is a question I will bet my bottom dollar you were asking at that time that I did not answer: If the Act and the regulations provide this broad a definition for “suffer or permit” to work, why hasn’t some smart . . . person . . . filed a lawsuit claiming he or she should be compensated for driving to and from work? I mean, after all, I sure wouldn’t get in my car and drive to work unless my boss made me come in, now would I? In a case called Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946), the Court held that certain walking time was compensable under the FLSA because it was under the “complete control of the employer.” In that case the employer had a long complex and employees were required to walk for up to 15 minutes after they punched in to get to their work stations. After that, it sure isn’t going to take long for somebody to make the leap to driving, now is it? Well Congress thought paying people for time spent driving to and from work was a bad economic idea and they were afraid that that was one of the natural outcomes of Mt. Clemens Pottery so they passed the “Portal-to Portal Act” to amend the FLSA.
According to the regulations:
(a) The Portal-to-Portal Act. The Portal-to-Portal Act (secs. 1-13, 61 Stat. 84-89, 29 U.S.C. 251-262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice. It should be noted that “preliminary” activities do not include “principal” activities. See §§790.6 to 790.8 of this chapter.
29 CFR § 785.9.
That answers some questions, like do I have to pay my employees for simply driving to work. Clearly, the answer is No (in most cases). But what is a “principal” activity? The regulations under the Hours Worked section of the regs go into a bit more detail to try to help explain that concept.
In November, 1947, the Administrator issued the Portal-to-Portal Bulletin (part 790 of this chapter). In dealing with this subject, §790.8 (b) and (c) of this chapter said:
(b) The term “principal activities” includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are found in the report of the Judiciary Committee of the Senate on the Portal-to-Portal bill. They are the following:
(1) In connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.
(2) In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.
Such preparatory activities, which the Administrator has always regarded as work and as compensable under the Fair Labor Standards Act, remain so under the Portal Act, regardless of contrary custom or contract.
(c) Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its 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. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.
29 CFR § 24.
Now you would think that would settle when an activity is “indispensable” and thus compensable. If we go way back to the 50’s, we find a couple of cases decided by the Supreme Court that set the bar for when clothes changing must be paid. And we have a reg for that too:
These principles have guided the Administrator in the enforcement of the Act. Two cases decided by the U.S. Supreme Court further illustrate the types of activities which are considered an integral part of the employees’ jobs. In one, employees changed their clothes and took showers in a battery plant where the manufacturing process involved the extensive use of caustic and toxic materials. (Steiner v. Mitchell, 350 U.S. 247 (1956).) In another case, knifemen in a meatpacking plant sharpened their knives before and after their scheduled workday (Mitchell v. King Packing Co., 350 U.S. 260 (1956)). In both cases the Supreme Court held that these activities are an integral and indispensable part of the employees’ principal activities.
29 CFR § 785.25.
Section 3(o) of the Act says:
In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
29 USC 203(o).
So changing clothes is excluded, right? Not so fast. What if I have to put on special equipment? This was a hot issue when the Portal-to-Portal Act was passed and it remains a hot issue today. And the DOL can’t seem to make up its mind. Prior to 2002, for example, the DOL issued an opinion letter concluding that protective gear worn in meat packing, like mesh gear, could not be considered “clothes” under section 203, so it was compensable. Then in 2002, the DOL issued a new opinion letter stating that clothes under section 203(o) did include the protective equipment worn in the meat packing industry. Then in 2010, the DOL changed its mind again and determined that protective equipment was not “clothes” under 203(o) so, again, putting on and taking off this special equipment was compensable. And the DOL did such a good job of explaining all of this (catch the sarcasm there?) that just last month the Supreme Court in Sandifer v. U.S. Steel had to decide the issue all over again. In Sandifer the issue was, is donning and doffing protective gear compensable under the FLSA when it was exempted from time worked by a collective bargaining agreement?
Ok, so let’s go back to Section 3(o) of the Act. What is important here? First, what are “clothes”? That’s right, the Supreme Court of the United States is deciding if protective gear is clothes. The union argued No, it is not, so you can’t bargain changing into it away. The company argued Yes, it is. The Court split the baby. They defined clothes as something designed to cover the body and are commonly regarded as articles of dress. So what is next? “Changing.” How about “time spent altering dress.” Yep, that’s what the Court said. So where does all of this take us? The Court said: “Applying the foregoing principles to the facts of this case, we hold that petitioners’ donning and doffing of the protective gear at issue qualifies as ‘changing clothes’ within the meaning of § 203(o).” So protective gear is clothes and putting it on is changing and that means . . . . you can collectively bargain the right to be paid for putting on protective gear away.
What is the moral of this story? Before you decide you don’t have to pay employees for changing on site, check with your labor lawyer.