In December 2014, we reported on Integrity Staffing Solutions, Inc. v. Busk, a case involving Amazon.com, in which the United States Supreme Court held that time spent going through security checks was not compensable work time. (See our blog post here). Just last month, we reported on Balestrieri v. Menlo Park Fire Protection District, in which the Ninth Circuit Court of Appeals held that time spent by firefighters traveling from one station to another to pick up or drop off “turnout gear” was not compensable. (See our blog post here).
On November, 7, 2015, a District Court in Northern California found in favor of another tech giant, Apple, on the issue of security checks after the end of employees’ shifts. In Frlekin v. Apple, Inc., employees who worked in Apple stores filed a lawsuit alleging that they should have been compensated for time waiting while their bags were being checked by a manager or a security guard. The employees’ FLSA claims were dismissed following Integrity Staffing Solutions, but their state claims remained. (Note: Public agencies are likely not subject to the California state laws at issue in the Apple case.) The District Court dismissed the state law claims upon motion for summary judgment.
In its analysis of state law, the District Court focused on whether the employee had “no plausible way to avoid the activity.” In other words, was the activity “mandatory and not optional at the discretion of the worker”? The District Court held that employees could have avoided waiting for the security check by simply leaving their bags at home. That is, Apple never required employees to bring bags to work with them. In the event, however, that an employee chooses to bring a bag, the employee is subjecting himself or herself to Apple’s bag check policy.
While this case secured another wage and hour victory for employers, your agency must still be careful to ensure your employees are not “working” immediately before or after a scheduled shift. Is showing up a few minutes early to prepare for a presentation considered work? What about staying past your shift to clean equipment and supplies that you were using during the shift?
Under the FLSA (which will apply to public agencies), work performed by employees is not compensable if it is considered “de minimis.” This means insubstantial or insignificant periods of time which cannot be precisely recorded for payroll purposes. For example, if an employee finishes a phone call a few minutes past her shift, those few minutes may not compensable as de minimis. On the other hand, if an employee were coming in early prior to every shift and performing the same duties every time, it might be considered compensable work, even if only for a few minutes.
Practical Tip: Use rounding principles to keep track of time in increments of 15 minutes or smaller.
Requiring employees to keep track of time in 15 minute increments, or smaller increments, will help employers assert the de minimis rule. This type of policy will show that an employer’s records are kept accurately in consistent increments of time and that on average employees are being fully compensated for their work. Be warned, however, that rounding cannot operate to the detriment of the employee over time. As an obvious example, a rounding policy that permits an employee to work up to 14 minutes without being compensated will operate to the employee’s detriment over time.