Courts define 'off-the-clock' work
Overtime and misclassification collective action claims
under the Fair Labor Standards Act (FLSA) are the fastest
growing areas of employment litigation. As reported by Martindale-Hubble's
Pulse, "Class action lawsuits against employers charging
FLSA violations have exploded in the last two years, according
to data compiled by LexisNexis CourtLink. In 2001, 397 FLSA
class actions were filed in district courts.
In 2004, that number nearly tripled to 1,076. At the same
time, the number of other types of class action employment
litigation, including Title VII and Employee Retirement Income
Security Act (ERISA) cases, has remained relatively steady.
In many recent cases, plaintiffs allege that their employer
violated the FLSA by requiring them to work before or after
their scheduled shift (off the clock) without paying them
for that time.
To date, employees in the construction industry have raised
relatively few of these claims. However, because employees
in the construction industry may perform a variety of activities
before and after their scheduled shift, the issue of uncompensated
"off-the-clock" time is prevalent in the construction
Common examples of the types of activities employees in the
construction industry may perform before or after their scheduled
1. Checking in and checking out tools the employees use during
2. Transporting tools and other equipment from a central
location to the jobsite and returning the tools to the central
3. Receiving instructions for the day's work
4. Searching for lost tools
5. Rolling out and rolling up tools and equipment
6. Stocking and assembling materials
7. Repairing and maintaining equipment and tools
8. Receiving safety instructions and performing various safety
9. Donning and doffing clothing such as utility belts, earplugs,
10. Traveling from outside the jobsite to restricted areas
on the jobsite
11. Traveling to the actual jobsite from the employer's office
or a central warehouse
12. Cleaning the work area
FLSA and Portal-to-Portal Act.
The FLSA requires that employers pay employees for all hours
worked. More specifically, the act requires that each covered
employee be paid at least a specified minimum wage for every
The act also requires that all non-exempt employees receive
at least one and a half times their regular rate of pay for
each hour worked over 40 in a given work week. But until it
is determined how many hours an employee has worked, it is
impossible to determine how much compensation the employee
Supreme Court decisions and the
Portal-to-Portal Act. While the FLSA requires employers
to pay employees for all hours worked, the FLSA does not provide
a definition of "work." Therefore, courts have been
left with the responsibility to do so.
In a case decided shortly after the passing of the FLSA,
the Supreme Court defined work as "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." Tenn.
Coal, Iron & Railroad Co. v. Muscoda Local No. 123, et
al, 321 U.S. 590, 598 (1944).
In Tennessee Coal, the Supreme Court concluded that the time
spent on iron ore miners in traveling underground in mines
to and from their place of work constituted "work"
or "employment" for which compensation was required
to be paid under the FLSA. According to the court, the miners
were entitled to portal-to-portal pay, where the travel occurred
under the employer's strict control and involved continuous
physical and mental exertion as well as hazards to life and
Moreover, in traveling the miners were engaged in a process
or occupation necessary to actual production. Two years later,
the Supreme Court modified its ruling >> and expanded
the definition of "work" in Anderson, et al v. Mt.
Clemens Pottery Co., 328 U.S. 680 (1946). In Mt. Clemens,
the court held that "there need not be exertion at all
. . . when the employee is required to give up a substantial
measure of his or her time and effort, the time is hours worked."
Because Mt. Clemens dramatically expanded the definition
of "work" at a time when there was no federal statute
of limitations on FLSA claims, potential liability for "off-the-clock"
claims reached the billions. As a result, Congress enacted
the Portal-to-Portal Act, which limits the scope of compensable
activities under the FLSA.
Under the Portal-to-Portal Act, "walking, riding, or
traveling to and from the actual place of performance of the
principal activity or activities" and "activities
which are preliminary to or postliminary to the principal
activities" are not compensable, unless such activities
were made compensable in an express provision of a contract
or if it was the custom or practice of the employee to compensate
the employees for such activities."
While the statute was clear in its intent (to eliminate liability
for before workday and after workday activities), the statute
is far from clear as applied by the courts.
Conclusion. While the FLSA requires employers to pay employees
for all hours worked, the statute recognizes that there are
certain activities that are "preliminary and/or postliminary"
to the primary activities that the employee is employed to
The FLSA does not require that employers pay for the performance
of such preliminary and postliminary activities. If such activities
are, however, "an integral part of and indispensable
to" the employees' principal activities, compensation
Whether an employee performs compensable work (as opposed
to noncompensable preliminary or postliminary activities)
prior to and after their scheduled shift, is a fact-sensitive
inquiry and will be decided on a case-by-case basis.
In the construction industry, in light of recent litigation
trends and the realities of the industry, employers are encouraged
to proactively take the necessary steps to protect their companies
from liability by employees who may claim that they perform