Boshkoff: Preliminary and postliminary activities under the FLSA

By Ellen E. Boshkoff

In March, the 7th Circuit ruled that members of the Chicago Police Department’s Special Weapons and Tactics (SWAT) Unit were not entitled to minimum wage or overtime compensation for off-duty time they spent storing their rifles and gear in their homes. Chagoya v. City of Chicago, 992 F.3d 607 (7th Cir. 2021). The ruling provides clarification of preliminary and postliminary work activities and the “continuous workday rule” under the Fair Labor Standards Act (FLSA).

Background

The FLSA, enacted in 1938, established minimum wage and overtime compensation standards for hours worked in excess of 40 hours per week. 29 U.S.C. § 201, et seq. However, the statute left certain critical terms, such as “work,” undefined. In early decisions, the Supreme Court took an expansive view of the statute’s coverage, defining work as “physical or mental exertion … controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business,” Tennessee Coal, Iron & R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944) (superseded by statute as stated in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014)), and subsequently ruling that “‘exertion’ was not … necessary for an activity to constitute ‘work’ under the FLSA.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 519, 163 L.Ed.2d 288 (2005) (quoting Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165, 89 L.Ed. 118 (1944)). These rulings have since largely been codified in FLSA interpretive regulations. See, e.g., 29 C.F.R. § 785.7; 29 C.F.R. § 785.

As the Supreme Court later observed, these expansive interpretations “provoked a flood of litigation,” with “unions and employees fil[ing] more than 1,500 lawsuits under the FLSA,” seeking a combined almost “$6 billion in back pay and liquidated damages for various preshift and postshift activities.” Integrity Staffing Solutions, Inc., 574 U.S. at 31–32. Congress responded by passing the Portal-to-Portal Act. Among other things, the Portal-to-Portal Act carved out activities “which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” and “which are preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a).

The Portal-to-Portal Act therefore generally excludes an employee’s preliminary and postliminary activities from the requirements of the FLSA. Nonetheless, pre- and post-work activities are compensable if they are an “integral” and “indispensable” part of the employee’s principal activities, unless they fall under the de minimis exception.

Although this distinction appears simple, the issue of what is preliminary or postliminary has generated a great deal of litigation. Recently, the Supreme Court ruled that security screening is not compensable time. Integrity Staffing Solutions, Inc., 574 U.S. at 27. In doing so, the Supreme Court clarified the concept of “integral and indispensable” by holding that “[a]n activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Id. at 33.

Another important concept is the “continuous workday rule.” Under this rule, the compensable workday begins with the first “principal activity” of a job and ends with the employee’s last “principal activity.” IBP, Inc., 546 U.S. at 29 (citing 29 C.F.R. § 790.6(b)). Thus, once the work day begins, all activity that occurs during that work day (with the exception of unpaid breaks) is compensable.

Chagoya v. City of Chicago

In Chagoya v. City of Chicago, the 7th Circuit applied these concepts to the city’s SWAT Unit. At issue were rules requiring SWAT Unit members to take special gear home to be better prepared to respond to emergencies and requiring that they store the gear in their homes, as opposed to their vehicles, for safety reasons. The plaintiffs sought compensation for loading their gear in their vehicles and for the subsequent commute to work, reasoning that the otherwise non-compensable commute was part of the continuous workday.

In rejecting their claims, the 7th Circuit first considered whether transporting gear home was required or merely recommended. The court concluded that this was a distinction without a difference. In Integrity Staffing, the Supreme Court held that it was an error to “focus[] on whether an employer required a particular activity.” Integrity Staffing Solutions, Inc., 574 U.S. at 36, 135 S.Ct. at 519 (emphasis in original). Instead, “[t]he integral and indispensable test is tied to the productive work that the employee is employed to perform.” Id. (emphasis in original). Accordingly, even assuming that plaintiffs were required to transport gear to their homes, this would not answer the question of whether such activities were “integral and indispensable” to their principal work activities.

The 7th Circuit then moved on to the more difficult issue: defining the principal work activity. Plaintiffs defined their principal activity as “responding rapidly and systematically to critical incidents” and argued that keeping their gear at home was essential to that function. Chagoya, 992 F.3d at 621. The 7th Circuit disagreed. The court noted that although plaintiffs might be able to perform their jobs better if they stored their gear at home, they nonetheless could still perform their principal duties — responding to emergencies — without doing so. The 7th Circuit ruled that “an activity that allows a reduced response time is an activity that promotes greater efficiency, but greater efficiency alone does not turn an activity into an integral and indispensable one.” Id. at 623.

Because the 7th Circuit ruled that the pre- and post-work activity was not compensable, it likewise ruled that the employer need not pay for commuting time.

Practical implications

The 7th Circuit’s ruling underscores the importance of defining the employee’s “principal work activity” to determine whether preliminary or postliminary time is compensable. Activities that render the employee better at performing his or her job do not satisfy the “integral and indispensable” test; rather the activity must be essential to the employee’s performance of principal duties.

Additionally, it illustrates the importance of the continuous workday. In many cases the preliminary and postliminary activity — in this situation, loading gear — is not time-consuming. However, because any compensable activity “starts the clock,” otherwise non-compensable activities (commuting, changing clothes, going through security screening, etc.) can be swept into an employee’s workday. Thus, employers should carefully review pre- and post-work requirements to evaluate whether they are compensable, if so, whether the job can be structured such that those activities immediately precede or follow other compensable work.•

• Ellen E. Boshkoff is a partner at Faegre Drinker Biddle & Reath. Opinions expressed are those of the author.