News & Insight

Are We Working Yet? When Getting Ready Is “Integral” to the Job

Courts have struggled over the years to define which of the tasks involved in preparing for work, as well as leaving it, are “compensable” to employees. Disparate results have been difficult to reconcile with each other. Recently, the U.S. Supreme Court set a more specific standard for sorting out that issue.

The Portal-To-Portal Act (“the Act”) enacted in 1987 exempts from time for which employees must be paid (known as “compensable time”) under the Fair Labor Standards Act “preliminary” and “postliminary” activities. Unfortunately, the Act does not define those vague terms, so courts have struggled with applying the law in different contexts since the Act took effect.

For example, time spent by battery plant employees exposed to toxic chemicals, who shower for safety reasons before leaving work, and by meat packer employees, who sharpen their knives at the start of their shift, all was classified by courts as compensable “postliminary” or “preliminary” activity. On the other hand, time spent by poultry plant employees putting on protective gear before working on the assembly line, presumably for safety reasons unique to their industry, was considered non-compensable.

In a recent decision, Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court reviewed a lower court decision which held that time spent by warehouse employees going through security screening at the end of the workday to check for stolen items was compensable. That lower court had reached that result on the grounds that the screening was required by the employer in order to protect its business interests.

In a unanimous ruling, the Supreme Court reversed that decision as being based on an erroneous standard for determining whether preliminary and postliminary activities are compensable under the Act. The opinion explained that merely because the screening was somehow related to the workplace and the employer required the checks to protect the company’s inventory did not necessarily mean that the time spent going through the process was compensable. 

The court explained that, in order to be compensable, such postliminary activity must not only be required by the employer, but must also be an “integral and indispensable part” of the principal activity an employee is hired to perform. Thus, any activity which could be eliminated without impairing the employee’s ability to perform their job function does not qualify as compensable postliminary activity. 

The court concluded that the security screenings were not an intrinsic element or component of the employees’ job of retrieving products from the warehouse shelves. As a consequence, that postliminary activity did not constitute compensable time pursuant to the Act.                 

That ruling clarifies the test to be used to determine whether employees must be paid for preliminary and postliminary activities. Employers must treat as compensable those required tasks which are an integral part of employees’ job function and could not be eliminated without impairing the performance of that principal activity. 

Employers can facilitate such assessments by preparing written job descriptions which accurately identify the essential tasks performed by employees in different work classifications. To prepare those job descriptions, employers should confer with supervisors and employees about the nature of the job duties they actually perform and then require them to sign-off on the accuracy. That simple step can better insulate employers from challenges by disgruntled employees seeking overtime pay for time purportedly spent performing compensable preliminary and postliminary activities.    

For more information please contact Mike Smith at 410-583-2400 or