Thursday, October 15, 2015

Compensable working time : FLSA :: Disability : Pre-2009 ADA

analogiesThink back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?

Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

What does this mean (and how dare I make you think about your SATs for the first time in forever)?

Over at his new, and excellent, blog, The Day Shift, Doug Hass reports that a Pennsylvania federal court has concluded that “mine workers who were required to attend pre-shift safety meetings could not claim compensation under the Fair Labor Standards Act (FLSA) because, in the court’s view, the safety meetings were neither ‘principal activities’ nor ‘integral and indispensable’ to them.”

The “principal activities” and “integral and indispensable” language comes from Integrity Staffing Solutions v. Busk, last year’s Supreme Court case which held that the time warehouse workers spent waiting for and undergoing post-shift security screenings were noncompensable postliminary activities.

In the Pennsylvania case (Bonds v. GMS Mine Repair & Maintenance), the court concluded:

Attendance at a pre-shift safety meeting (while perhaps desirable) is not an intrinsic element of conducting underground mining activities. It is instead the sort of activity that is “two steps removed” from the productive activity that, in this case, occurs underground. GMS also could have eliminated the pre-shift safety meetings altogether without impairing the miners ability to conduct their work. In other words, the miners are able to perform underground labor regardless of whether they attended the pre-shift meetings.

Here is my prediction: At some point Congress will step in and fix the meaning of compensable work. Until Congress did the same in 2009 with the meaning of disability under the ADA, an employer could (and often did) successfully argue that medical conditions such as cancer or epilepsy were not ADA-protected disabilities because the employee’s symptoms were in check via remission or medication. Congress stepped in to remediate that ludicrous result. I believe Congress will do the same with the definition of compensable working time under the FLSA. It is almost as ludicrous to conclude a pre-shift safety meeting is not “an intrinsic element” of activity as inherently unsafe as underground mining. While Integrity Staffing is a much closer case (and was probably decided correctly), the Bonds court illustrates the slippery slope that the Integrity Staffing holding can create. It’s not that far of a slip-and-fall to a workplace in which virtually no preliminary or postliminary activities are compensable, no matter the nexus to the job. To me, this result cries out for a solution so that the realities of compensability match the realities of the modern workplace.