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FMLA Forms Published May 2015 Current as of April 2019

FLSA Hours of Work Without a Section 14(c) Special Minimum Wage Certificate

Government Contractor Pay Transparency Nondiscrimination Poster No Longer Required

USDOL Issues Proposed Rule: Nondiscrimination and Equal Opportunity WIOA

Not Renewing a Section 14c Certificate Could Prove Costly - Hours Work Changes

Affordable Care Act Employee Notification Forms & Guidance Packet

Break Time for Nursing Mothers under the FLSA

New Definition for Hours of Work Results in Violations - Employers Take Heed!

In a recent case before the U.S. Supreme court has revised and expanded the definition of hours of work under the Fair Labor Standards Act, FLSA. The USSC has ruled that the work day begins with the first “principal activity” and work day continues until the employee is released and performs the last principal activity. Many of the activities that employees have performed usually without pay are now considered “principal activities” and not only constitute work time but begin the work day. Examples are turning on the lights, turning on the computer, the HVAC, putting on required uniforms or clean room protective garb, etc.

In a recent case brought by the employees, Thomas Dege, et al, No. 06-3754 (DWF/RLE) Plaintiffs, v. Hutchinson Technology, Inc., the Secretary of Labor submitted a brief in support of the employees stating the Department’s position. Pertinent portions of the brief follow. Take note of the sections we have placed in bold and underlined for your attention.

Pursuant to this Court's Order dated August 15, 2007 (Doc. No. 174), the Secretary hereby submits this Brief as Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment.

Employees' Donning and Doffing of Clean Room Gear Constitutes "Work" Under the FLSA

The FLSA generally requires employers to compensate covered employees at one and one-half times their regular rate of pay for all hours worked in excess of forty hours in a workweek. See 29 U.S.C. 207(a)(1). The statute reflects "a Congressional intention to guarantee either regular or overtime compensation for all actual work or employment." Tenn. Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944).

The FLSA does not specifically define the terms "work" or "workweek."3 However, the Supreme Court has construed these terms broadly. In Tennessee Coal, the Court defined "work" "as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." 321 U.S. at 598. The Court subsequently clarified that this definition was "not intended as a limitation on the Act," and that even non-exertional acts, such as waiting, can be "work" under the FLSA. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); see IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005) (Armour "clarified that 'exertion' [i]s not in fact necessary for an activity to constitute 'work' under the FLSA.").

In Anderson v. Mt. Clemens Pottery Co., the Supreme Court defined the "statutory workweek" for which employees must be compensated as including "all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." 328 U.S. 680, 690-91 (1946). The Court specifically concluded that turning on lights, putting on aprons and coveralls, removing shirts, taping or greasing arms, and putting on finger cots constitute "work" under the FLSA for which employees must be paid. Id. at 692-93.

Plaintiffs' donning and doffing of clean room gear and associated walking before, during, and after their shifts, clearly constitute "work" under the FLSA because HTI requires or controls these activities, and they are performed solely for HTI's benefit. See Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984) (pre-trip safety inspection of trucks required and controlled by employer and for employer's benefit constitutes "work"); see also De Asencio v. Tyson Foods, Inc., No. 06-3502, 2007 WL 2505583, at *10 (3d Cir. Sept. 6, 2007) (donning and doffing sanitary and protective clothing by poultry workers constitutes "work"); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 911-12 (9th Cir. 2004) (donning and doffing clean room "bunny suits" constitutes "work" under the FLSA because it is "activity, burdensome or not, performed pursuant to [the employer's] mandate for [its] benefit as an employer.") (internal quotation marks and citation omitted).

Employers must be mindful of this expanded definition of hours of work and what constitutes a principal activity. Those activities that are performed at the beginning of the work day that appear insignificant, may now start the work day. Under the “continuous work day rule” of the FLSA, the violations can be much greater than the time it actually takes to perform that activity. For example, the employee arrives at work ten, fifteen, twenty, thirty minutes early, and performs a principal activity such as turning on the lights, turning on the computers, starting the network, putting on required protective clothing, etc. as described above and then goes to the break room or socializes with other workers before starting their “productive” work at the scheduled time. Under the new ruling, the work time started when the employee performed the principal activity and includes the time when the employee was in the break room or socializing waiting on the scheduled start time.

What Must Employers Do Now

  • Identify all principal activities that employees are performing at the beginning and end of the work day.
  • Conduct an analysis to determine which of those principal activities must be performed, when, and by whom.
  • Schedule and assign those activities and instruct employees as to when they are to be performed, namely at the time management intends for the employee’s work day to start.
  • Specifically instruct employees who arrive early or tarry after work when they are to perform principal activities. Take the management steps necessary to ensure that employees comply with your instructions and ensure that they are paid for all their work time from the first principal activity, all ensuring time until they are released from work.

MKAI can conduct a compliance review to determine what activities are principal activities under the new rule and help you develop strategies and policies to ensure compliance and reduce your exposure to back wage liability and litigation. Contact our office for details.

If you have any questions or would like more information, please contact us at 828-328-9241.