Articles Discussing Hours Worked Under The FLSA.

The City of Chicago lacked either actual or constructive knowledge that members of the Chicago Police Department were performing after-hours work on their smartphones, the Seventh Circuit Court of Appeals has ruled, affirming a trial court’s earlier ruling that the City was not liable for this work under the Fair Labor Standards Act. Allen v. City of Chicago, 2017 U.S. App. LEXIS 14230 (7th Cir. Aug. 3, 2017). The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.

Technological advancements have impacted employee scheduling in certain industries. Notably, employers with access to real-time data that suggest the level of expected business on any given day may require employees to be “on call.” But, in a recent lawsuit against clothing retailer Forever 21, employees allege they’ve been subjected to “exploitative” scheduling practices regarding so-called “on call” shifts. Comparable suits have recently been filed against other fashion retailers like Victoria’s Secret and BCBG Max Azria, regarding similar policies.

Joining similar decisions applying the Supreme Court’s interpretation of the Portal-to-Portal Act in Integrity Staffing Solutions, Inc. v. Busk, Senior District Judge Terrence F. McVerry of the Western District of Pennsylvania recently held that time spent attending allegedly mandatory pre-shift safety meetings was not compensable under the FLSA because those safety meetings were neither “principal activities” nor “integral and indispensable” to the mining employees’ principal activities. Bonds v. GMS Mine Repair & Maint., Inc., 2015 U.S. Dist. LEXIS 127769 (W.D. Pa. Sept. 23, 2015).

Applying the Supreme Court’s unanimous decision in Integrity Staffing Solutions, Inc. v. Busk, the United States Court of Appeals for the Ninth Circuit recently ruled that firefighters are not entitled to compensation under the FLSA for time spent moving certain necessary gear to and from temporary work assignments at fire stations other than their “home” stations. Balestrieri v. Menlo Park Fire Prot. Dist., 2015 U.S. App. LEXIS 15785 (9th Cir. Sept. 4, 2015).

The best defense for employers confronted with claims of “off-the-clock”, (i.e., unrecorded) work under the FLSA are accurate contemporaneous time records created by employees based on clearly communicated time keeping practices. The effectiveness of such records was recently demonstrated in Roberts v. Advocate Health Care, 2015 U.S. Dist. LEXIS 103631 (N.D. Ill. Aug. 7, 2015).

Although most employers are aware that an employee’s time spent working is generally compensable, the question of what actually constitutes compensable “working time” under the Fair Labor Standards Act (FLSA) is an area fraught with uncertainty and the subject of substantial litigation. Indeed, in December 2014, in the case of Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court concluded that employees’ time spent waiting to undergo and undergoing security screenings was not compensable working time. If the amount of litigation surrounding this issue is any indication, determining whether employee activity connected to employment is compensable is an area where mistakes are easily and commonly made by employers.

In a significant decision addressing the compensability of employee break times, the U.S. Court of Appeals for the Sixth Circuit recently held that time spent by a group of security guards monitoring their radios during meal periods was not compensable work time under the FLSA because they failed to demonstrate that the time spent during their meal breaks was predominantly for the benefit of their employer. Notably, the Sixth Circuit found that the meal periods were non-compensable notwithstanding the fact that the security guards were unable to leave the premises and had to listen to their radio throughout their break, regardless of what they were doing.

Employers across the country are breathing a sigh of relief following the December 9, 2014 unanimous ruling of the U.S. Supreme Court that time spent by warehouse workers waiting for and undergoing antitheft security screening is not compensable time under the Fair Labor Standards Act (FLSA). Integrity Staffing Solutions, Inc. v. Busk et al., No. 13-433. The opinion is of significant import for many of the nation’s largest employers, as security screening and bag checks have become an increasingly ubiquitous part of an employee’s ingress and egress to and from work. Indeed, the significance of this ruling is underscored by the spate of class-action suits that were filed after the U.S. Court of Appeal for the Ninth Circuit’s determination in Busk et al. v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (2013), which held that such time could be compensable under the FLSA. Like the Busk litigation, the suits that followed the Ninth Circuit’s ruling have been brought by employees seeking back-pay for time spent in security screening, and represented massive potential liability. Justice Thomas authored the majority opinion that reversed the Ninth Circuit’s holding in Busk with a concurring opinion authored by Justice Sotomayor and joined by Justice Kagan.

Employers should be relieved to know that they are not required to pay employees for security check time. In a unanimous opinion issued Tuesday, the U.S. Supreme Court held that workers are not entitled to be paid for time spent waiting for and undergoing post-shift anti-theft screenings under the Fair Labor Standards Act (FLSA) as amended by the Portal to Portal Act.

Executive Summary: On December 9, 2014, the United States Supreme Court issued a unanimous decision favorable to employers significantly limiting the types of preliminary and postliminary activities that are compensable under the Fair Labor Standards Act (FLSA). In Integrity Staffing Solutions, Inc. v. Busk, the Court held that the time spent by warehouse workers waiting to undergo and undergoing security screenings before leaving for the day is not compensable.

While the chance of both chambers approving bills this term that would significantly alter workplace wage and hour law is extremely low, members of the House and Senate continue to draw attention to this area. On Wednesday, Democratic members of both Houses of Congress introduced the Schedules that Work Act (H.R. 5159, S. 2642), a bill that would give hourly workers the right to request flexible and/or regular work schedules without reprisal. Senator Tom Harkin (D-IA) introduced the Senate bill and Rep. George Miller (D-CA) sponsored the House version. The bill would establish an interactive process for requesting and considering such schedule changes. In addition, according to a fact sheet, the legislation would require employers to:

By a 6-4 vote accompanied by an unusual set of dissenting and concurring opinions, the U.S. Court of Appeals for the Seventh Circuit declined to review en banc the prior decision by a divided three-judge panel affirming dismissal of a lawsuit filed on behalf of unionized poultry processing plant workers seeking compensation for time spent donning and doffing protective and sanitary clothing at the start and end of their meal periods.

The U.S. Supreme Court granted certiorari on March 3, 2014, in the matter styled Integrity Staffing Solutions v. Busk, to review the compensability of time spent in security screening under the Fair Labor Standards Act (FLSA). At issue is the recent decision from the Ninth Circuit holding that employees can state a claim under the FLSA for an employer’s failure to compensate them for time spent in pre or post shift security screening. Busk et al. v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The question is of great import for the nation’s employers as security screening is becoming an ever more common practice in the workplace. Indeed, the Ninth Circuit’s determination in Busk has already triggered a spate of class-action suits filed by employees seeking back-pay for time spent undergoing pre or post shift security measures. If allowed to stand, the Ninth Circuit’s determination could result in massive retroactive liability stemming from such suits.

On Monday, January 27, 2014, in unanimously affirming the Seventh Circuit’s judgment in favor of U.S. Steel Corporation in Sandifer v. United States Steel Corp., the Supreme Court forged a middle ground on the meaning of the term “changing clothes” in section 3(o) of the Fair Labor Standards Act (FLSA). The outcome of this case will have a significant impact on unionized employers in a wide variety of industries where workers change in and out of protective and/or sanitary clothing at the start and end of their workdays, including food processing, light and heavy industrial manufacturing, chemical processing, energy production and health care. However, the Supreme Court’s opinion also leaves some unanswered questions on the compensability of clothes changing under section 3(o).