While the Portal-to-Portal Act sounds more like a science fiction movie than a wage statute, it comes into play every day for hourly employees. Enacted in 1947 in response to litigation following the relatively new (at the time) Fair Labor Standards Act, the act attempts to provide rules for when employees must be paid when they may not be actually performing their duties. Specifically, FLSA prohibits employees from seeking wages for time spent:

  • Traveling to and from the actual place where they perform the principal activities of their job, and
  • Activities which are preliminary or postliminary to those work activities.

The purpose of the law was to only compensate employees for activities integral and indispensable to their work.

Prior Court Decisions

Case law after the passage of the act further defined what counted and what didn’t. For example, courts held that for employees who manufactured batteries and worked with dangerous chemicals and fumes, time showering and changing clothes after work counted as integral and indispensable to the job and should be paid. However, courts held that time waiting to don protective gear (not the time actually spent putting on the gear) was not compensable under the Portal-to-Portal test.

More recently, courts have addressed post-shift security screenings of employees to see if that waiting time was compensable. In Integrity Staffing Sols., Inc. v. Busk, the Supreme Court held that since mandatory security screenings of warehouse employees’ were not related to their jobs of retrieving and packaging products for shipment, the time waiting for the post-shift security screenings was not compensable. Other state courts have followed suit.

So What Did the Fifth Circuit Do?

On November 9, the Fifth Circuit issued an opinion dealing with construction workers on an oil drilling operation. The plaintiffs were scaffolding workers that had to park in a remote lot and ride company buses to the refinery. While their shifts started at 7 a.m., the buses sometimes delivered them to the refinery earlier, and they had to wait around until the shift started. They filed an action arguing that the time they had to wait between being dropped off and the start of the shift was compensable because they were not allowed to perform any work during that time, but it was beneficial to the employer.

The Fifth Circuit held that the test for Portal-to-Portal compensability was whether the wait time was integral and indispensable to the principal activities they were employed to perform. Here, plaintiffs erected and dismantled scaffolding. During the wait time, they were not undergoing safety training, donning safety equipment or completing paperwork—all of that was done after 7 a.m. and paid. Instead, most of the workers testified that they used the wait time to “chat” or “smoke.” They argued that since the wait time was required by and benefited the employer, they should be paid for it.

The court disagreed. It held that under the Busk decision, the fact that an employer required an activity and that it may benefit the employer was not enough to make it compensable. Instead, the workers had to show that the preliminary wait time was integral and indispensable to their work erecting and dismantling scaffolding. The proof did not show that it was, and therefore they were not entitled to compensation for it.

What to Do with Waiting Employees?

If there are things that your employees are having to do before or after a shift, you need to be sure of what they are actually doing. If they are waiting for something like a post-shift security screening, that time may not be compensable. If they are donning safety equipment or cleaning off after a dangerous activity, it may be compensable. This decision shows that it is important to have well-defined rules as to when a shift begins and what is required of an employee pre- or post-shift.