The Portal to Portal Act (1947) was enacted to clarify hours worked wage issues that the Fair Labor Standards Act (FLSA) (1938) did not address. The general rule put in place by this amendment was enunciated in a U.S. Supreme Court decision one year prior (1946). The rule stated that if the employee was engaging in activities that benefit the employer, he or she should be paid for those services regardless of where the work was performed. It also specified that normal travel to and from work was a normal incident of employment and should not be compensable. Last week the 11th Circuit Court of Appeals ruled on a case to determine if dressing for work at home and the use of company vehicles to get to and from work brings those activities into the scope of work.
Courts have often found pre-shift and post-shift activities compensable for non-exempt classifications. However, those activities had to be shown to be part of the “principal activity or activities” of the job in order to receive pay for them. Further, those activities needed to be an “integral and indispensable part of the principal activities” per the Portal to Portal Act.
In the 11th Circuit Case (Florida) sheriff deputies argued they should be paid for “donning and doffing” their uniforms because they were required to show up to work in uniform and to drive sheriff vehicles assigned to them to and from work. While they were in the sheriff vehicle, they were required to watch for traffic violations, respond to emergencies, and have their radios on in the event of a call involving an emergency or major response. The Sheriffs were paid if they engaged in work by pulling over vehicles or in some way engaged to perform sheriff duties during their commute. The Sheriffs argued it took them 30 minutes to “suit up” before work, and this should be paid time.
In this part of the decision, the Court relied on Department of Labor Opinion (Memorandum No. 2006-2) and ruled that dressing into uniform could be argued to be an indispensable part of the job, but it was not integral to the job. Where the employee dresses may impact whether such work could be compensable. The option of changing at home instead of work lends itself to the argument that the time is not compensable, because changing for work usually has to happen anyway and anywhere.
The second issue of whether driving to work with the possibility that they would engage in work while en route should make that travel time compensable or not was addressed. The Court held that the general rule as upheld by a number of Courts, including Michigan’s Sixth Circuit, that travel to and from the worksite is not compensable was a correct rule to go by regardless of whether the sheriffs would have to engage in work during the trip. Was the activity a productive part of the work the employee was expected to do? The Court ruled that was not the standard here because the Portal to Portal Act 29 U.S.C. Sec. 254 (a) specified that travel to and from work is not compensable. As to the requirement that they be ready to respond and “go to work” during travel in to the worksite, the Court noted in dicta that it would undermine law enforcement if marked patrol cars bypassed accidents or disabled vehicles and ignored violations just because they were “going to work.” Therefore, those activities are not principal activities and are not compensable. The Department of Labor had specifically addressed this as well in 29 C.F.R. Sec. 553.221 (f) stating:
“A policed officer, who has completed his or her tour of duty and who is given a
patrol car to drive home and use on personal business, is not working during the
travel time even when the radio must be left on so that the officer can respond to
emergency calls.”
Sources: "Portal to Portal Act," The Employment Law Group; Llorca v. Sheriff Collier County , Florida; Seyfarth Shaw Employment Law Lookout "The Eleventh Circuit Affirmed It Was Not A 'Crime' To Not Compensate For Dressing and Drive Time"