LABOR AND EMPLOYMENT LAW: Defining the Workday in the Modern Economy

Vol. 29 No. 4


Richard L. Alfred is a partner in the Boston, Massachusetts, office of Seyfarth Shaw LLP. Jessica M. Schauer is managing associate in the Boston office of Seyfarth Shaw LLP.

Employers have long endured a lack of cohesive guidance as to what constitutes “work” under the Fair Labor Standards Act (FLSA). The FLSA itself does not define the term, and the Supreme Court has remained mostly silent on the topic since the 1940s.

A brief history of “work.” The FLSA dictates that “no employer shall employ any of his employees . . . for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

The Supreme Court first attempted to define “work” for purposes of the FLSA in Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 (321 U.S. 590 (1944)). The Court determined that Congress intended for the words “work” and “employment” to be interpreted “as those words are commonly used—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.” Applying this definition, the Court held that time spent by miners traversing underground tunnels to reach the mine’s active faces must be included in the hours worked despite the long-standing industry custom of paying only for time spent at the faces of the mines.

In Anderson v. Mt. Clemens Pottery Co. (328 U.S. 680 (1946)), the Supreme Court again expanded the definition of work by holding that employees’ time spent traveling from the entrance of the facility to their work stations was compensable time. This holding resulted in a torrent of lawsuits, prompting Congress to respond with the Portal-to-Portal Act, which provided that employers would not be liable for failure to pay minimum wages or overtime for time spent “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities.” Two years later, Congress added Section 203(o) to the FLSA to preserve the ability of employers and unions to bargain with respect to the compensability of time spent “changing clothes or washing at the beginning or end of each workday.”

The Court addressed the Portal-to-Portal Act for the first time in Steiner v. Mitchell (350 U.S. 247 (1956)), in which employees of a battery factory claimed to be entitled to pay for time spent changing into and out of work clothes and showering at the end of each day in order to limit their exposure to lead and other toxic chemicals. The Court held that activities “integral and indispensable” to a principal activity are themselves principal activities and are not excludable from work time under the Portal-to-Portal Act.

IBP, Inc. v. Alvarez (546 U.S. 21 (2005)) followed some 50 years after Steiner and held that performance of integral and indispensable activities render subsequent activities a compensable part of the continuous workday, even if those activities are not themselves integral and indispensable.

The Department of Labor’s view of “work.” Like the FLSA itself, the regulations of the Department of Labor (DOL) interpreting the FLSA do not define work. DOL has, however, defined the term “workday” in regulations promulgated shortly after the passage of the Portal-to-Portal Act. These regulations anachronistically describe the workday as “roughly . . . the period from ‘whistle to whistle.’” They further state that “periods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any workday must be included in the computation of hours worked. . . .” These provisions have not changed since they were first drafted in 1947. However, DOL periodically has issued other kinds of guidance documents such as opinion letters. DOL’s most recent guidance, Interpretation No. 2010-2, demonstrates the challenges faced by employers in navigating this area of law.

The interpretation concludes that, for purposes of Section 203(o), the definition of “clothes” must exclude protective gear of any sort. Citing the “weight of authority,” the interpretation states that even where “clothes changing” is excluded from compensable time by operation of Section 203(o) and a collective bargaining agreement, it may be a “principal activity” that triggers the start of the workday.

With respect to DOL’s definition of “clothing,” employers have strong defenses to the application of the interpretation. First, DOL’s position on this topic has frequently fluctuated over the last several years. When an interpretation conflicts with prior agency guidance on the same subject, it is subject to less deference by the courts. Moreover, the interpretations’ analysis of the legislative history surrounding Section 203(o) is superficial and inaccurate. Finally, the interpretation runs contrary to the majority of circuit court decisions on the subject. The Seventh Circuit recently summarily rejected the DOL’s position, bluntly calling the argument that protective gear is not clothing under Section 203(o) “a loser.” DOL’s proclamation that changing clothes can trigger the start of the continuous workday, even when the task itself is not compensable pursuant to a collective bargaining agreement provision and the operation of Section 203(o), also represents a departure from prior DOL guidance, which may limit the deference afforded to it by courts.

The continuous workday in the technological workplace. If the continuous workday analysis in Alvarez supplants other Supreme Court precedent defining “work,” then employers in most modern workplaces are left with few defenses to the compensability of many common pre-shift activities. For example, under the Tennessee Coal definition of work, an employer may be able to argue successfully that booting up a computer requires negligible exertion and thus is not work. It is more difficult to argue that this activity is not “integral and indispensable” to an employee’s principal activities where computer use is a required part of the employee’s job.

One of the few defenses that remain available to an employer in such circumstances is the de minimis doctrine, which permits employers to disregard certain small increments of otherwise compensable time. Courts commonly employ a three-prong test to determine whether time is de minimis. The test looks to (1) “the practical administrative difficulty of recording the additional time”; (2) “the aggregate amount of compensable time”; and (3) “the regularity of the additional work.” As a general rule, most courts hold that activities that take less than ten minutes are eligible to be considered de minimis, but some courts have found activities of up to 20 minutes’ duration to fall within the scope of this defense.

The position espoused by DOL with respect to the effect of Section 203(o) on the continuous workday could severely limit the de minimis exception: Even an activity that is noncompensable under the FLSA could be characterized as a principal activity. If an activity can start the continuous workday despite the fact that it is de minimis, it could vastly increase the scope of compensable time for many employers, particularly in connection with the use of electronic devices. For example, if an employee’s use of his smartphone from home to respond to a work-related e-mail can begin the continuous workday, the employer may then be required to pay for all the time subsequent to that e-mail.


ABA Section of Labor and Employment Law

This article is an abridged and edited version of one that originally appeared on page 363 of ABA Journal of Labor & Employment Law, Spring 2011 (26:3).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
Periodicals: ABA Journal of Labor & Employment Law (formerly The Labor Lawyer), published three times per year; Labor and Employment Law, newsletter, published quarterly; substantive committee newsletters, published biannually.
CLE and Other Programs: For a full listing, see
Books and Other Recent Publications: The Fair Labor Standards Act, 2d ed., with 2011 Cum. Supp.; The Family and Medical Leave Act, with 2011 Cum. Supp.; Wage and Hour Laws, 2d ed.; Age Discrimination in Employment Law, with 2011 Cum. Supp.; Employment Discrimination Law, 4th ed., with 2011 Cum. Supp.; Employee Duty of Loyalty, 3d ed., with 2011 Cum. Supp.; Employment at Will.



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