Florida Construction Law: A Free Ride: Clearing Security and Traveling to Work Not Compensable

By Alexander E. Barthet

The Eleventh Circuit Court of Appeals, in a recent case which will have far reaching implications in the construction industry, soundly rejected workers’ demands for pay under the Fair Labor Standards Act.

The claimants were construction workers employed by a subcontractor working on a public project at an airport. In order to reach their work sites at the project, the workers needed to pass through a security checkpoint. Thereafter, they rode designated buses or vans to the actual job sites. This transportation was provided free of charge by the general contractor and was the only transportation available inside the security checkpoint to the work sites.

The construction workers did not perform any work while clearing security and traveling to their work sites. Arguing that safety requirements on the job required them to carry personal equipment such as safety goggles, hard hats and work boots, the employees claimed that the time clearing security and traveling on authorized transportation to the job site was compensable work-related time under the FLSA.

The Court framed the relevant issue to be whether the employees, by boarding buses, going through security or carrying personal safety equipment were engaged in activities that were “integral and indispensable” to their work. The Court ruled that since the Department of Labor issued statements giving examples of walking, riding or traveling (including riding on buses) as being considered “preliminary or postliminary” non-compensable activities, it need not consider whether or not carrying the safety equipment was “integral and indispensable” to the employees’ work. Therefore, time spent riding the authorized buses and vans to the job sites was held to be non-compensable time under the FLSA.

Unlike the travel-related time, the time spent going through security screening is not specifically exempted under § 254(a)(1) of the FLSA. However, the court again considered the provisions of § 254(a)(2) regarding activities that are preliminary to or postliminary to work-related activities in analyzing the issue of whether or not such time was compensable.

In doing so, the court looked to an earlier case that set forth three factors to consider in making this determination. The factors are whether the activity: (1) is required by the employer; (2) is necessary for the employee to perform his or her duties; and (3) primarily benefits the employer. While the first and third factors clearly weighed against the employees, they placed great weight upon the second factor. The Eleventh Circuit disagreed and focused on whether or not the activity in question must be work in the benefit of the employer. Since the employer did not benefit from the time employees spent going through security screening, the court ruled that the employees were not entitled to be compensated for this time.

At a time when security checkpoints have become common place, including at busy construction sites, this case has made clear that time spent waiting to be cleared shall not be compensable.
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This article was first published in the August 2007 issue of Southeast Construction.
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Article Concepts: Compensable time, getting to work, travel related activities, work related activities, preliminary activities to work, postliminary activities to work.

 

 

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