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Second Circuit Rejects Expanding Compensable Work Day to Include Duties Not Integral to Principal Work Activities

  • June 7, 2007

The Court of Appeals for the Second Circuit has affirmed the dismissal of a collective action lawsuit under the Fair Labor Standards Act ("FLSA") against current and former operators of a nuclear power facility located in New York seeking compensation for certain required activities before and after the work day. In Gorman v. The Consolidated Edison Corp. and Gorman v. Entergy Nuclear Operations, Inc., Nos. 05-6546-cv and 06-2241-cv, 2007 U.S. App. LEXIS 12450 (2d Cir. May 30, 2007), the Court decided the consolidated appeal of two separate District Court rulings which had dismissed claims by employees in favor of the employers.

The employees alleged that they were required by their employers to spend an additional 18 to 30 minutes every day passing through multiple layers of security at the nuclear power facility before they could perform the tasks for which they were hired. Once through the security procedures, the employees claimed they were entitled to compensation for time spent donning and doffing basic safety gear (e.g., helmet, goggles, and steel-toed shoes), and walking to and from the area where the safety gear is located and their work areas. The employees alleged these activities were compensable under the FLSA.

The employers argued that permitting the employees' claims to proceed would constitute an expansion of the compensable work day in contravention of existing law. The employers maintained that the Portal-to-Portal Act was passed precisely to prevent employers from being subjected to the uncertainties and unexpected liabilities that would result from allowing employees to pursue compensation for the kinds of activities alleged. The Portal-to-Portal Act amended the FLSA to exclude certain preliminary and postliminary activities from compensable work. The employers asserted that the Supreme Court's decision in IBP v. Alvarez, 546 U.S. 21 (2005), supported their position, because activities do not become compensable merely because they precede compensable work.

In an opinion written by Chief Judge Dennis Jacobs, the Second Circuit agreed that the activities at issue were non-compensable preliminary and postliminary activities. The Court's analysis interpreted and applied Supreme Court precedent announced in Steiner v. Mitchell, 350 U.S. 247 (1956), and reiterated in IBP v. Alvarez, that pre- and post-shift activities must be both "integral and indispensable" to principal work activities to be compensable. The Court noted that the employees relied chiefly on their contention that the activities at issue were "indispensable" to principal work without accounting for the requirement that the activities also must be "integral" to principal work to be compensable. The Second Circuit distinguished the term "integral" from "indispensable," holding:

[t]he activities required to enter and exit [the nuclear power facility] — from waiting in line at the vehicle entrance through the final card-swipe and handprint analysis — are necessary in the sense that they are required and serve essential purposes of security; but they are not integral to principal work activities.

The Court further stated, "These security-related activities are modern paradigms of the preliminary and postliminary activities described in the Portal-to-Portal Act, in particular, travel time."

Specifically addressing the employees' argument that the highly regulated environment at a nuclear power facility and the time-consuming nature of the activities involved removed them from traditional preliminary or postliminary activities otherwise excluded by the Portal-to-Portal Act, the Court explained:

[the employees] argue that the Portal-to-Portal Act was enacted when the time-consuming security measures at issue may not have been envisioned, and there is some force to the observation that security measures at sensitive facilities (and elsewhere) are becoming increasingly invasive, layered and time-consuming. But the text of the statute does not depend on the purpose of any preliminaries, or how much time such preliminaries may consume. . . .

[S]ecurity measures that are rigorous and that lengthen the trip to the job-site do not thereby become principal activities of the employment.

The Court also found that the donning and doffing of the generic protective gear involved in this case (helmet, safety glasses, and steel-toed boots) are not integral merely because they are required by the employer or by government regulation. It noted that such donning and doffing are "relatively effortless," noncompensable, preliminary tasks.

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To our knowledge, the Gorman decision is the first case of its kind in any court addressing whether time spent complying with an employer's rigorous security procedures constitutes compensable work. Coincidentally, on the same day the Second Circuit issued the Gorman decision, the Eleventh Circuit issued a decision on a similar claim. In Bonilla v. Baker Concrete Constr., Inc., No. 06-12515, 2007 U.S. App. LEXIS 12431 (11th Cir. May 30, 2007), the Court of Appeals in Florida affirmed summary judgment for an employer who had contracted to perform work at an airport. In Bonilla, following an analysis similar to that in Gorman, the Court rejected claims by employees that they were entitled to be compensated for time spent traveling or being cleared by security before arriving at their actual worksite within the airport.

The courts in both Gorman and Bonilla relied heavily on the reasoning regarding "integral and indispensable" activities set forth in the Supreme Court's 2005 decision in IBP v. Alvarez. However, contrary to the predictions of some commentators after IBP v. Alvarez was decided, the Second and Eleventh Circuits both recognized that the Portal-to-Portal Act continues to exclude from compensable work those preliminary and postliminary activities which are not "integral and indispensable" to principal work.

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The current operator of the nuclear power facility involved in Gorman was represented by Jackson Lewis LLP, specifically, Jonathan Kozak and Joseph Martin of the firm's White Plains, New York office.

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