Mon, 11/25/2019
They say time is money, but what about time spent at your job before you clock in and after you clock out? Recent developments may make this time compensable in many states, including here in D.C.
For workers in the nation’s capital, the workday almost never feels like nine to five. Due to ubiquitous security screenings and checkpoints, being interrupted by our supervisors as we travel to our worksite or desk, we are all absorbed in work-oriented activities long before and long after the hours for which we are being paid.
But Amazon’s new proximity to the country’s most secure city raises a question —indirectly but importantly—as to the extent workers in the District of Columbia do, in fact, deserve to be compensated for certain pre- and post-work activities.
For the past eight years, Amazon warehouse affiliates have been tied up in litigation over whether time spent undergoing and waiting to undergo mandatory security screenings should be considered compensable worktime. Sometimes this screening process takes close to half an hour but, no matter the length, Amazon does not pay its employees for this time.
In 2014, the Supreme Court found that this time was not compensable under the federal wage and hour law – the Fair Labor Standards Act (FLSA) – because it was a preliminary and postliminary activity that was not “integral and indispensable” to the employee’s main job of retrieving items at a warehouse to be shipped to Amazon’s customers. The “integral and indispensable” requirement comes from the Portal to Portal Act, which modified the FLSA.
But in 2018, the United States Court of Appeals for the Sixth Circuit determined that, under Arizona and Nevada state law, the time spent undergoing security screenings is likely compensable, as these states have not adopted the Portal-to-Portal Act in interpreting their own wage and hour statutes. Many states including Pennsylvania, Maryland and DC also do not have portal to portal acts.
This past October, the U.S. Supreme Court denied Amazon’s petition to revisit the issue, leaving the lower court’s ruling in place. Most recently, on November 4, 2019, the Sixth Circuit asked the Pennsylvania Supreme Court for assistance in resolving whether the same can be said for Pennsylvania’s minimum wage and overtime laws. The court observed that “the issue is unsettled.”
Which brings us back to your morning routine: Does the District of Columbia’s wage and hour laws require compensation for pre- and post-shift work activity required by an employer? Likely yes.
There is no parallel “Portal-to-Portal Act” in the District of Columbia. The District of Columbia Minimum Wage Act specifically states that “working time” includes, among other things, time that an employee “waits on the employer’s premises for work.” D.C. Code § 32-1002(10)(D). It also explicitly excludes incorporation of federal regulations as they relate to the Portal-to-Portal Act, stating “references to interpretations of the Portal-to-Portal Act shall have no force and effect.” Finally, although very few courts have examined this specific issue, the U.S. District Court for the District of Columbia found that the District’s wage and hour laws do not incorporate the Portal-to-Poral Act in 2015. The court there concluded that “the District’s wage law differs from the federal Fair Labor Standards Act (FLSA) in that there is no ‘Portal to Portal’ Act under District law.” Dinkel v. MedStar Health, Inc. (D.D.C. 2015).
Obviously, the ability to recover any potential lost wages will vary from worker to worker. But given the degree of security in the District of Columbia—from government contractors to law enforcement—there is a real chance that many D.C. workers are not being properly compensated for their time.
So, while there is no real chance that your time in turnstiles is going to get any easier in the coming months and years, you may be able to secure payment for it.
