If the boss makes you do it, is the activity compensable under the FLSA?

March 24, 2015

REUTERS/Brian Snyder   The Fair Labor Standards Act, 29 U.S.C. § 201, says an employer is not required to compensate an employee for time spent on activities such as traveling to and from their job site, or activities that are preliminary or postliminary to their principal job activities.

While at first blush this concept of compensability may seem straightforward, employees continue to litigate the definition of work in an effort to expand FLSA coverage as it relates to activities that have only a tangential relationship to their primary job activities.

A unanimous Supreme Court held in Integrity Staffing Solutions Inc. v. Busk, 135 S.Ct. 513 (2014), that Amazon, an online warehouse retailer, “did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to [its] customers.”

The Court ruled that lengthy security screenings, aimed at protecting against employee theft, were not integral and indispensable to the employees’ principal duties for purposes of compensability under the FLSA, as amended by the Portal-to-Portal Act of 1947.

Although the Integrity decision specifically addresses the compensability of post-shift screenings, the decision also highlights the ongoing debate over what types of ancillary employee activities are compensable as work under the FLSA.  A recent decision by a New York federal district court further illustrates employee attempts to expand the scope of the “preliminary or postliminary” exception.

In Gibbs v. City of New York, No. 12–CV–8340, 2015 WL 321850 (S.D.N.Y. Jan. 23, 2015), U.S. District Judge Ronnie Abrams tackled the compensability of required attendance at alcohol treatment and counseling sessions.

The New York Police Department identified Gibbs, and another plaintiff as having alcohol problems, and referred them to the department’s Counseling Services Unit.

The employees filed suit, seeking compensation for their required attendance at these sessions, which were both inpatient and outpatient, with the outpatient sessions occurring after regularly scheduled work hours.  They sought overtime for any inpatient treatment and for the after-hours sessions, contending the time spent in counseling and treatment constituted work under the Fair Labor Standards Act.

Judge Abrams ruled that the employees’ required attendance at the treatment and counseling sessions was not compensable work under the FLSA.

She explained that the sessions, even though required by the police department, were not predominately for the benefit of the department.  Moreover, even assuming the counseling sessions constituted work, Judge Abrams found that the duties of the plaintiffs — answering telephones, completing accident reports, and interacting with the public — were non-compensable postliminary activities under the Portal-to-Portal Act.