Ever since enactment of the Portal-to-Portal Act in 1947, courts have been asked to define what types of work-related activities should and should not be paid -- especially those occurring prior to the official start of the workday, or taking place after standard work hours. The courts generally analyze this question by asking “whether those hours are devoted to activities that constitute an integral and indispensible part of the principal activity of employment.” One commonly cited example is the daily commute to work, which is not compensable under the Act because it is not part of the work, itself, but rather is “preliminary” to that work.
On August 10, the Second Circuit, in Donnelly v. Greenburgh Central School District No. 7, addressed this issue in the context of a high-school teacher. Although the specific question was whether the teacher worked 1,250 hours during the school year and thus met the threshold for FMLA eligibility, the court’s discussion of hours worked could have broader wage-and-hour implications for other types of employers.
The court focused on two of the district’s arguments in support of its position that the teacher had not worked the requisite number of hours. First, the district maintained that the collective bargaining agreement (“CBA”) provided for a 7.25 hour work day, which included a one-hour prep period to handle duties other than actual classroom instruction. Although the teacher claimed to have worked additional hours outside the classroom, the district argued that because he “provided no details at all on what he did during the extra hours he claims to have worked,” he could not survive summary judgment.
Recognizing that the primary work of teachers “must extend beyond the hours spent in front of a class,” the court found the argument unpersuasive, adding that the job duties of teachers “sometimes take more time to complete than the one additional hour specified in the CBA,” and that the extra hours were not “preliminary work distinct from the principal activity for which Donnelly was employed.”
Second, the district highlighted the FMLA’s off-duty provision, which says that “periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.” From the district’s perspective, when the 7.25-hour school day ended, the teacher was “free to leave the school and use his time…as he wished,” such that any time worked thereafter was not compensable.
The court also rejected this argument, holding that even if a teacher were permitted to go home after 7.25 hours, he could still be required to do necessary work, and that the district might not accept as an excuse for poor planning and preparation that the teacher simply stopped working at the 7.25 hour mark.
Ultimately, the Donnelly court determined that a jury could reasonably agree with the teacher and held that the grant of summary judgment was improper. Like the school district in Donnelly, unwary employers -- particularly those whose non-exempt workers are capable of taking work home or staying late at the job site -- could find themselves on the hook for more straight pay or overtime hours than budgeted. As Donnelly teaches (pun intended), some professions may require more work than the amount proscribed by a CBA or standard work schedule. If an employee must work extra hours to meet the demands of a supervisor, those hours may be compensable.