Legal Updates

SUPREME COURT ISSUES IMPORTANT DECISION REINFORCING OFFICERS RIGHTS TO PAY FOR PRE-SHIFT WORK

Aaron Nisenson
General Counsel, IUPA

The Supreme Court recently issued a decision in an FLSA case that should solidify officers rights to pay for work before and after the official start of a work shift. In IBP, Inc. v. Alvarez, 126 S.Ct. 514 (Nov. 8, 2005), the Supreme Court addressed the “donning and doffing” of specialized protective gear, and certain travel and waiting time associated with this donning and doffing, in meat processing plants. While the donning and doffing of police gear is generally not considered compensable because it is not considered “elaborate” and “unique” protective gear, (except perhaps in some specialty units such as the bomb squad), the Court made some very important policy and legal rulings that will help police officers.

First the Court emphasized that the Portal to Portal Act does not exclude any time that occurs after the start, or before the end, of the work day. The Portal to Portal Act excludes from work time, time for travel to and from place of performance of the principle activity, and activities “preliminary and postliminary” to principle activities. However, the Court held that this language does not exclude any time after the work day has begun and before it has ended. In other words, if a small amount of work is done before the travel time, the travel time cannot be excluded under the Portal to Portal Act.

The Court’s second and related finding was that activities that are indispensable to the principle activity are part of the principle activity. In the context of the case, donning safety gear was integral to performing the cutting duties, and therefor was part of the cutting duties. This leads to two important conclusions: first, this preliminary time is compensable, and second it constitutes the beginning of the work day, after which the Portal to Portal Act cannot exclude any time.

Third, the Court addressed the important issue of time waiting to do preliminary or postliminary activities. The Court held that time waiting at the end of the shift to take off gear was compensable. On the other hand time spent waiting prior to the start of the shift was generally not compensable, with two exceptions: pre-shift waiting time may be compensable if the employer requires that the employee arrive at a certain time, and there is no work for the employee to do; and the FLSA would “allow compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry.”

In the law enforcement context, these holdings reinforce officers rights to pay for preliminary activities such as roll call time, and time spent preparing paperwork and other essential activities. Equally importantly, once an employee begins performing this preliminary activity, the work day has started, and the employer cannot use the Portal to Portal Act to avoid paying overtime. For example, a department cannot hold a roll call at a central station, and then refuse to compensate officers for time spent traveling to their respective posts. See IBP, pg. 525 (Court citing with approval a regulation “interpreting the FLSA, that ‘[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked . .’”) Finally, if the Department requires that employees arrive at work at a specific time prior to the shift, the work day starts at this time, and the department should compensate the officers from this time forward. See IBP, pg. 528 quoting 29 C.F.R. 970.7(h)(2005).

Finally, the Court’s repeatedly cited the statutory provision that allows unions to negotiate for compensation for pre-work time that would not normally be compensable. See IBP, pg. 520, 29 USC 254(b). This provision is also consistent with other sections of the FLSA where deference is given to collective bargaining agreements, for example in the use of compensatory time and determination of canine pay. (However, the FLSA does not alone give unions the right to negotiate under state or local laws. See Christensen v. Harris County, 529 U.S. 576, (2000).) Together, these FLSA sections provide strong statutory support for the negotiation of pay and scheduling issues, and rebut any argument from Departments that they cannot negotiate over this pay because the time is not covered by the FLSA. To the contrary, as the FLSA recognizes, it is often in the interest of both the officers and the Department to have an agreement on pay for preliminary activity (even some that may not normally be covered by the FLSA), instead of spending the effort to track and calculate this preliminary time down to the minute.

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