Patrick Miller-Bartley
Fri, 05/12/2023
There are few jobs where workers can stroll in, sit down, and begin working. Either because of time constraints or tasks that workers must complete to properly do their jobs, many workers come in early, stay late, and are not compensated for that time. The Portal-to-Portal Act, which celebrates its 76th anniversary on May 14th, may mandate compensation for much of that work.
Congress passed the Portal-to-Portal Act in 1947, in large part to clarify what pre- and post-shift activities workers must be paid for under the Fair Labor Standards Act (FLSA). Congress passed the FLSA in 1938, and it required then—as it still does now—that employers: (1) pay their employees at least the federal minimum wage for every hour they work, and (2) pay their employees at least one-and-a-half times their normal rate of pay for every additional hour they work over 40 in a workweek. However, the original Act did not define the term “work,” and a series of court cases defined work as including certain time workers spent walking or otherwise traveling before shifts, as well as certain other pre- and post-shift activities.
Unfortunately, Congress disagreed with this interpretation of work, believing that it was too broad, and contrary to “long-established customs, practices, and contracts between employers and employees.” In response, it passed the Portal-to-Portal Act (named after the “portals” through which miners would descend into the earth), which established that employers did not need to pay workers for:
- 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, [or for]
- activities which are preliminary to or postliminary to said principal activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a). As a result, whether workers are entitled to compensation for time they spend engaging in certain tasks before or after their shift depends on whether those tasks can be said to be part of the job’s “principal activities.”
Nevertheless, workers do not need to be engaged in exactly the activities in their job description to be performing compensable, “principal activities.” A welder, for example, does not necessarily need to be actively welding for their time to be compensable. Instead, under the Portal-to-Portal Act, a worker is performing a compensable, “principal activity” if they are engaged in an activity that is an “integral and indispensable part of their principal activities,” or a task that is “intrinsic” to the job and one that, without which, the worker could not do the job.
Courts have therefore held that a variety of pre- and post-shift work was compensable—many of it of the kind that employers often try not to pay workers for. For example, workers in a battery factory who needed to change into “work clothes”—merely old, disposable t-shirts and jeans—received compensation for that changing time, because it was necessary for them to do their jobs safely and without exposing themselves and their families to dangerous amounts of lead. The Portal-to-Portal Act and the FLSA have also mandated pay for corrections officers who needed to pick up radio batteries before their shifts; slaughterhouse workers who needed to don protective gear and sharpen knives before their shifts; canine officers who needed to care for their dogs before and after their shifts; and even student loan servicers who came in early to boot up their computers and wait for software to load.
The attorneys at McGillivary Steele Elkin are experts in the field of wage & hour law, including issues involving the Portal-to-Portal Act. If you perform tasks that are a necessary part of your job before or after your shift—even if you are not formally required to do so—do not hesitate to contact us for a consultation.
