On December 9, 2014, in Integrity Staffing Solutions, Inc. v. Busk[1], the U.S. Supreme Court held that workers need not be paid for time spent waiting and undergoing security screenings while leaving their work facility. Under the Fair Labor Standards Act (“FLSA”), activities that are preliminary or postliminary to the principal activity or activities that the employee is employed to perform are generally not compensable. But preliminary and postliminary activities are compensable if they are “integral and indispensable” to an employee’s principal activities. The Court in Integrity Staffing helped clarify what type of work is compensable under these standards, but left many questions unanswered as to how these standards would apply in other contexts.
On September 4, 2015, in Balestrieri v. Menlo Park Fire Protection District[2], almost one year after the Supreme Court decided Integrity Staffing Solutions, Inc.,the Ninth Circuit has helped answer these questions for public employees. In Balestrieri, the Ninth Circuit analyzed whether a firefighter’s time spent traveling from one fire station to another in order to pick up or drop off “turnout gear,” before or after working voluntary overtime shifts, constitutes compensable time giving rise to an overtime claim. The Court held that plaintiffs were not entitled to overtime for taking their gear to temporary duty stations because this activity was not integral and indispensable to the principal activities the plaintiffs were employed to perform and was “preliminary” or “postliminary” under the FLSA.
As background, turnout gear is the protective safety clothing worn when fighting fires. Menlo Park Fire Protection District (“District”) does not require firefighters to store their turnout gear at a particular station, and provides firefighters with two sets of turnout gear. The firefighters are free to take all of their gear home with them, and bring it back with them at the beginning of a shift. They generally, however, prefer to leave their gear in the fire station, because of the bulk and dirt, and concerns about exposing their families to the materials on soiled gear. The firefighters generally work two consecutive 24-hour shifts, beginning and ending at 8AM, followed by 96 hours off duty.
The turnout gear issue in this case arose from occasions when a firefighter volunteers to work an overtime shift in a fire station other than his home station. This happens, for example, if a firefighter at another station calls in sick or is on vacation, leaving the station understaffed. Firefighters sign up to be called to work at visiting stations when necessary so assignments are often voluntary although a firefighter may also be ordered to work at another station when necessary. These “temporary assignments” are lucrative because if a firefighter worked his two day shift at his home station, he is paid at time and a half for overtime on the visiting shift. The firefighter gets paid when he reports at the beginning of the shift at the visiting station, with his gear.
In Integrity Staffing Solutions, Inc., the Supreme Court ruled that an activity is not compensable under the FLSA just because the employer requires it or because it is done for the benefit of the employer. Rather, even activities required by the employer and for the employer’s benefit may be “preliminary” or “postliminary” activities (and thus not compensable) if they are not integral and indispensable to the “productive work that the employee is employed to perform.” Thus, in Integrity Staffing Solutions, Inc., the Supreme Court held that security screenings were not “integral and indispensable” to the employees’ duties as warehouse workers even though the employer required the security check before the employee could leave the building and go home. The activity was not tied to the productive work that the employee was employed to perform.
Similarly, in Balestrieri when the firefighter put his name on the list for overtime calls, he is free to take his gear home, and if he gets a call, he can go to the visiting station for the assigned shift without even stopping by his home station. Thus, driving to the home station first is not “indispensable to the firefighters’ principal activities.” The Court in Balestrieri observed that firefighters are employed to engage in the prevention, control, and extinguishment of fires or response to emergency situations where life, property or the environment is a risk. Loading up turnout gear to report to a shift at a visiting station—when they knew they could be going to a different station and chose not to bring their gear home– is “two steps removed” from that activity and not “integral and indispensable” to it.
This was a significant case for employers in that the Court further narrowed the parameters for compensation under the “integral and indispensable test.” The Court explained in the context of firefighters how the activity has to be tied to the productive work that the employee is employed to perform for it to be compensable. Thus, in determining what pre and post-shift activities should be paid, employers should focus on whether the activity is indispensable and integral to the productive work the employee is hired to perform, and not just on what the employer requires or whether the activity benefits the employer.
[Note: Richard Bolanos, Suzanne Solomon, and Arlin Kachalia of Liebert Cassidy Whitmore’s San Francisco Office represented the employer Menlo Park Fire Protection District in this appeal in the Ninth Circuit.]
[1] 134 S.Ct. 1490 (2014)
[2] 800 F.3d 1094 (9th Cir. 2015)