RECENT DECISIONS FIND PRE- AND POST-WORK ACTIVITY COMPENSABLE

GREGG ADAM

Partner

Messing Adam & Jasmine LLP

Longtime readers will recall during the mid-to-late 2000s, when “donning and doffing” cases under the federal Fair Labor Standards Act (FLSA) were all the rage. These actions were filed after the United States Supreme Court (commonly known as “SCOTUS” to practitioners) ruled in IBP, Inc. v. Alvarez (2005) 546 U.S. 21 that meat plant workers, who donned safety equipment immediately prior to their shifts at the worksite, must be compensated from when they put the equipment on until when they took it off. Lawyers for public safety employees saw a parallel and sued to make time spent putting on and taking off uniforms and equipment compensable.

Under the FLSA, time spent by employees performing their principal work activities, plus activities that are “integral and indispensable” to the principal activities, is compensable. Some donning and doffing claims succeeded, but often peace officer claims ran aground on the rationale that peace officers could don and doff work uniforms and safety equipment outside of the work site (e.g., at home), and this made the time non-compensable. (See, e.g., Bamonte v. City of Mesa [2010] 598 F.3d 1217.)
Three recent decisions may, however, revive compensation claims for peace officer pre- and post-work activity (PPWA), particularly in controlled environments.

First came the 2019 decision of the Missouri Court of Appeals in Hootselle v. Missouri Department of Corrections (2019 WL 4935933). In Hootselle, a large class of Missouri state correctional officers successfully sued for compensation under the FLSA for PPWA they undertook within the prison institution, before reaching and after leaving their posts, at the beginning and end of their work shifts. The unpaid PPWA included scanning cards to access the facility, being subject to entry and exit search, presenting themselves to superiors, picking up safety equipment and briefing replacement officers. These activities cumulatively took an additional 10 to 20 minutes each day. A trial court found these tasks compensable and a jury awarded the class almost $114,000,000 in damages.

On appeal, the Missouri Court of Appeals agreed that the entire time the employees spent within the prisons performing these duties was compensable under the FLSA. “[I]t is undisputed that the officers are ‘on duty and expected to respond’ if incidents of ‘offenders confronting staff and becoming physical’ occur at any time after they go into the facility.” Officers utilized their training to guard against prisoner fights and escape attempts during shift changes and were basically “‘waiting for work’ at all times from the moment they arrive at the premises, which is, as such, ‘integral and indispensable to [their] principal activities.’”
A few days before this article was submitted, the Missouri Supreme Court agreed to review the ruling. We will provide an update once that decision issues.
The second case was Aguilar v. Management & Training Corporation, No. 17–2198 (10th Cir. 2020), where 122 detention officers at a New Mexico county prison also alleged that their employer failed to pay them for PPWA as required by the FLSA. Like in Hootselle, the employees went through security screening when entering the prison facility, engaged in a pre-briefing, picked up tools and safety equipment, walked to their assigned posts and conducted a briefing with the officer they were replacing — all of which was “off the clock.” Similarly, after their shift, during their egress out of the facility, the employees performed the same tasks in reverse without compensation.

The employees, whose shifts were eight hours, were required to record the time precisely as they cleared the initial security screening on the way into the facility, and the time when they dropped off their tools on the way out. But generally, the employees were only paid for the time they spent at their actual posts. The exception to this general rule was if an employee cleared security screening more than 10 minutes before their shift started or dropped their tools off more than 10 minutes after their shift finished. In those circumstances, employees would be paid for the actual time they recorded. Curiously, however, if an employee clocked in less than 10 minutes before their assigned start time and clocked out less than 10 minutes after their assigned stop time, the employee would not be paid for any additional time and received only eight hours of pay. After a federal district court rejected most of the officers’ claims, the officers appealed.

On appeal, the 10th Circuit Court of Appeals found that all the officers’ time spent within the institutions engaged in PPWA was compensable under the FLSA. The court began by recognizing that the officers’ principal activities included maintaining custody and discipline of inmates, supervising detainees, searching for contraband and general security. The officers’ day began with a security screening that was designed by the employer to ensure the overall security of the prison.
The employer argued that a 2018 SCOTUS decision, Integrity Staffing Solutions v. Busk (2014) 574 U.S. 27, which held that time during which Amazon workers were subject to a security screening was not compensable under the FLSA, resolved the employees’ claims against them. However, the Aguilar court disagreed, pointing out that while security screening was not integral to the Amazon workers’ principal activity of filling customers’ orders, it was integral to a correctional officer’s job of keeping prisons secure. Security screening was therefore found to be indispensable to the employees’ principal activity and, under what is known as the “continuous workday” rule, all time from that point forward was found compensable.

With respect to employees’ egress after their shift, the court looked at the employees’ final task before exiting the prison — returning work keys. It noted that unless employees did this, inmates could get possession of keys or equipment, which would make the prisons less safe. Because of this close connection between the keys and the employees’ underlying security job, the court had little trouble finding that the return of these keys was integral and indispensable to the performance of the employees’ principal activities. Accordingly, all time from security screening to key drop-off was ruled compensable under the FLSA.
Finally, on February 13, in Frlekin v. Apple (Feb. 13, 2020, S243805), the California Supreme Court ruled that time spent by Apple employees waiting for, and being subject to, a search before leaving Apple stores at the conclusion of their shifts was compensable under California law. Apple employees are subject to mandatory searches of their bags, packages, purses, backpacks, briefcases and personal Apple technology devices, such as iPhones, upon exiting the store for any reason (e.g., break, lunch, end of shift). The policy is designed to prevent theft.

Under California law, “hours worked” is defined differently than under the FLSA: “The time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” This standard, often called “the control standard,” is generally more favorable to employees.

Apple conceded that it was controlling its employees when it required them to wait for and submit to searches, but it nevertheless argued that an employee’s activity must be “required” and “unavoidable” in order to be compensable, and that the time spent waiting for and undergoing a search was not compensable because employees made voluntary decisions to bring personal effects to the workplace. The court gave short shrift to such arguments.
First, it pointed out that the terms “required” and “unavoidable” do not appear in the definition of hours worked. Second, it noted that unlike the FLSA, which generally excludes time spent traveling to and from work from compensability, California law finds travel time compensable if the employer controls it. Accordingly, the Supreme Court found Integrity Staffing “neither dispositive nor persuasive.”

Third, it pointed out that the time at issue occurred at the work site, where the employer’s interest — for Apple, deterring theft — and control is greater. Finally, the court recognized two realities of modern workplaces: (1) most employees have little choice, due to all kinds of personal circumstances (think medicine, lunch, etc.) but to bring bags to their place of work; and (2) “modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Accordingly, all the time was found to be compensable under California law.
While the Frlekin ruling will not assist FLSA claims, it will be useful for employees pursing claims for uncompensated time under California law. And the three cases signify a new opportunity for employees to pursue claims for work-related activities that are currently uncompensated.

Aguilar and Hootselle may give new hope to PPWA claims. However, before they do, both decisions will have to survive potential review: Hootselle, as noted, by the Missouri Supreme Court and, potentially, SCOTUS, and Aguilar by SCOTUS.
It is worth remembering that the FLSA itself was first applied to state and local employees by a 5–4 decision in Garcia v. San Antonio Metropolitan Transit Authority (1985) 105 S.Ct. 1005. With Justices Gorsuch and Kavanagh now on SCOTUS, many of us believe there may be five votes to overturn Garcia. If that happens, peace officers and other public employees would no longer enjoy FLSA overtime protections. Because some states — for example, California — have no state law requiring overtime payments for public employees, many will be limited to whatever overtime protections they can preserve under their labor agreements, which will come under renewed attack from employers.

About the Author
Gregg Adam is a partner with the law firm Messing Adam & Jasmine LLP. Gregg has worked with peace officer associations for over 20 years. He is a founding partner of the firm, which predominately represents public sector unions and their members in labor relations. Gregg and his partners and the attorneys at Messing Adam & Jasmine LLP are PORAC LDF panel attorneys.