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Is Commuting Time Compensable?

In a previous blog I discussed how the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, ("FLSA") was interpreted by the Supreme Court regarding "clothes changing time." In a related 2007 case, the United States Court of Appeals addressed "commuting costs" under FLSA, asking whether or not a worker should be paid for travel to and from work, and specifically in this case waiting in long security lines.

Employees working in secured areas have to wait in lines to complete security checks every day. Sometimes the delay is five (5) minutes and other times it can last up to or exceed thirty (30) minutes. This lawsuit was filed by workers for a subcontractor for the lead contractor in a project at the Miami International Airport ("MIA"). From approximately November 2001 until March 2003, the workers had to pass through a security checkpoint and then take buses or vans to their worksite. The employees did not perform any labor while waiting for or riding the vehicles; however the employees were required to carry their personal safety equipment as a condition of being transported to the job site. No instructions were given by supervisors, nor were any tools carried on the buses. The employees would sign in at the work site and get their instructions for the day. The employees argued that they should have been paid for the time waiting in the security line and riding the authorized buses to the job site.

The FLSA establishes minimum wage and overtime pay standards affecting employees in the private sector and in Federal, State, and local governments. The Act also determines what constitutes "compensable time," which time will then be added together to provide a total number of "hours worked," for the purposes of overtime and minimum wage. The "Portal to Portal" Pay Act was passed by Congress in 1947 and amended the FLSA to clarify that employers are not required to pay employees for time spent walking, riding or traveling to the place where the employee will perform their principal work activities, nor are they required to pay employees for time spent on activities that are "preliminary" or "postliminary" to their principal work activities. To determine if the activity is "preliminary" or "postliminary" to the employees principal work activities the Court considers the following factors: 1) whether the activity is required by the employer; 2) whether the activity is necessary for the employee to perform his or her duties; and 3) whether the activity primarily benefits the employer, to answer the question of whether or not the activity was "integral and indispensable" to the employer.

Applying these factors, the Court determined that the employer did not require or benefit from the FAA required security screening. Further, the Court relied on interpretive statements from the Labor Department indicating that time spent walking or riding between a plant gate and work bench or "other actual place of performance of its principal activity or activities," is not covered under the FLSA. The Court held there was no difference whether the company-provided rides were mandated or voluntary; neither constitutes compensable time. The Eleventh Circuit held that the time the employees spent on the employer's vehicles riding to and from their work site was non-compensable travel time, even if the employees were required to take the employer-provided transportation to their work sites. The Supreme Court declined to review this case.

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