Compensation For Pre- or Post-Shift Activities
“integral and indispensable” to the employees’ actual work
whether the activity at issue is "tied to the productive work that the employee is employed to perform"
Federal Court Clarifies When Employers Must Pay Employees For Pre- or Post-Shift Activities
National Law Review, Monday, November 20, 2017
(Please Note: different rules apply when the activities do not occur immediately before or after a shift, for “off-the-clock” work performed such as when employees wait “on call” or answer emails from home at night, travel time, unpaid breaks, etc)
A federal court recently provided guidance on an issue that still vexes some employers, i.e., when they must pay employees for time spent on tasks immediately before or after a shift.
Many employers require employees to take certain steps immediately before or after they start their actual shifts. For example, an employer might require an employee to put on protective equipment, pass through a security checkpoint, or drive to a remote jobsite to pick up tools.
In the case at hand, the employees performed construction work at an oil refinery. In order to reach the refinery, the employees needed to follow a unique procedure required by their employer. To help the employer manage traffic at the refinery, the employees needed to travel to a particular bus stop, wait for the bus, and then ride the bus to the refinery before their shifts started. (The court deemed the waiting and bus time to be non-compensable.)
In situations like this, an employee might have a right to pay, even if the employee’s shift has not yet started. The general rule is that an employer must pay employees for these pre or post-shift activities when they are “integral and indispensable” to the employees’ actual work. In other words, an employer must pay the employees if they need to perform the pre or post-shift tasks in order to complete the job duties that the employer hired them to perform, and if the pre or post-shift tasks are “intrinsic” to the actual job duties. (Importantly, tribunals apply different rules when the activities do not occur immediately before or after a shift, such as when employees wait “on call” or answer emails from home at night.)
Unfortunately, this rule is fairly subjective, and different tribunals have held employers to different standards. Nevertheless, the following cases provide useful guidance:
Where Amazon warehouse workers needed to pass through security screenings after their shifts, they were not entitled to pay, because the court considered the security screenings distinct from – rather than “intrinsic to” – the tasks the employer hired the employees to perform;
Where food plant workers needed to “don and doff” required safety equipment once they reached the plant, they were entitled to pay, because they could not perform their job duties without the equipment; and
Conversely, when food plant workers needed to wait before they could don and doff safety equipment, they were not entitled to pay for that waiting time, because it was too far removed from the tasks the employer hired them to perform.
In the case at hand, the court deemed the waiting and bus time to be non-compensable. According to the court, the employer did not hire the employees to wait, and it was not intrinsically necessary for them to wait before they could perform their actual job duties (i.e., their construction-related tasks). Some commentators have argued that the court applied the analysis in a way that was too “employer friendly,” because the employees effectively needed to wait and travel on the buses in order to reach the job site and perform their work. That said, the court properly considered whether that waiting and bus time was “intrinsic to,” or effectively a part of, the employees’ job duties (as opposed to something that did not relate closely to their actual job duties).
Ultimately, this case provides helpful guidance and precedent for other employers who require employees to perform certain pre or post-shift tasks. Nevertheless, other courts have applied these same rules in a more employee-friendly manner, so employers should consider all applicable authority when they are deciding how to structure their compensation procedures.