# Employment law Q
**URL:** https://boards.straightdope.com/t/employment-law-q/325773
**Category:** Factual Questions
**Created:** [October 11, 2005, 4:55pm UTC](https://boards.straightdope.com/t/employment-law-q/325773 "2005-10-11T16:55:14Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Otto](https://boards.straightdope.com/u/Otto)
#### Post date: [October 11, 2005, 4:55pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/1 "2005-10-11T16:55:14Z")
You’re not my lawyer, I’m not your client, you’re not offering legal advice, I’ll rely on what you say to my own detriment, etc.
Not that I’m planning on doing anything about this, except perhaps seethe with bitterness and resentment, but a situation at a brand new job, which mirrors a situation at several previous jobs, has arisen. I just started working at a new call center and got the standard “be logged in and ready to take calls at the start of your scheduled shift.” Which means that if my shift starts at 9 I have to arrive between 8:50 and 8:55 to launch all the necessary programs. On the other end of the day, the standard “no logging off until the end of your scheduled shift.” Which means that if my shift ends at 5 I will be there until at least 5:05 shutting everything down. I asked (as I always do) if this is paid time and was told (as I always am) that it is not. The one time a management weasel attempted to explain why this isn’t paid, she said “it’s not working, it’s getting ready to work” and compared it unfavorably to the notion of being paid for the time it takes to drive to the office from home. So this amounts to approximately an hour per week that I’m expected to be at work for which they will not pay me. Not a great deal of money in any given week but over the course of a year it adds up.
The question is, may employers legally refuse to pay employees for time the employee is expected to be at work, under the “preparing for work” argument? I have this vague memory from my employment law class lo these many years ago of a case that was sort of on point, involving a company refusing to pay employees for the time it took them to don protective gear to deal with chemicals, but I can’t find anything in my notes or textbook so I’m sort of lost in trying to nail it down.
In this particular call center I was hired to work specifically on a federal government contract, so if there’s a different answer based on federal labor rules I’d like to know.
The only call center where I ever worked that didn’t dick people over the extra time was, coincidentally or not, the only union shop I ever worked. There, the employer tacked an extra 5 minutes on to the legally required lunch period to compensate. Which would satisfy my as a solution in this instance as well, but I’m not exactly holding my breath.
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### Author:  [@Otto](https://boards.straightdope.com/u/Otto)
#### Post date: [October 11, 2005, 10:11pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/2 "2005-10-11T22:11:16Z")
:::bump:::
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [October 11, 2005, 10:19pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/3 "2005-10-11T22:19:31Z")
> [@Otto](#):
>
> The question is, may employers legally refuse to pay employees for time the employee is expected to be at work, under the “preparing for work” argument?
No. Citation forthcoming.
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### Author:  [@Cheez\_Whia](https://boards.straightdope.com/u/Cheez_Whia)
#### Post date: [October 11, 2005, 10:25pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/4 "2005-10-11T22:25:40Z")
I quit a call center that did this (not for this reason, however). You can only have 5 min to get all of your systems up and be ready to take calls, but they take at _least_ 10 min to get them all launched and logged in. One of my trainers actually told me to be there early and start logging in before I signed into the phone. :rolleyes:
I got a better job.
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### Author:  [@smartguysmile](https://boards.straightdope.com/u/smartguysmile)
#### Post date: [October 11, 2005, 10:33pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/5 "2005-10-11T22:33:22Z")
If in US can call US Dept of Labor 866-4USA-DOL.
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### Author:  [@squeekster](https://boards.straightdope.com/u/squeekster)
#### Post date: [October 11, 2005, 10:41pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/6 "2005-10-11T22:41:12Z")
If you are “on the clock” they are legally required to pay you for your time.
Seems to me that you should be able to call your state department of labor and anonimously turn in a complaint.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [October 11, 2005, 11:07pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/7 "2005-10-11T23:07:31Z")
Ok. Actually the answer to your general question is yes. Under the [Portal-to-Portal Act](http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000254----000-.html), employers need not compensate employees for:
> [@](#):
>
> (1) 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, and
> (2) activities which are preliminary to or postliminary to said principal activity or activities
So, yes, an employer can refuse to compensate employees for prelimary and postliminary activities. But the law gets a little murky when one considers what exactly constitutes preliminary and postliminary activity.
> [@](#):
>
> The FLSA requires an employer to record, credit, and compensate employees for all of the time which the employer requires or permits employees to work, 29 U.S.C. § 201, et seq., commonly defined as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944); see also Reich v. New York City Transit Auth., 45 F.3d 646, 649 (2d Cir. 1995).
>
> However, even when an activity is properly classified as “work,” the Portal-to-Portal Act, 29 U.S.C. § 254, exempts from compensation activities which are preliminary or postliminary to an employee’s principal activity or activities unless they are an “integral and indispensable part of the principal activities for which covered work[ers] are employed and not specifically excluded by section 4(a)(1) [of the Portal-to-Portal Act].” Lindow v. United States, 738 F.2d 1057, 1060 (9th Cir. 1984) (citation and quotations marks omitted); Reich, 45 F.3d at 649. In addition, some activities that may qualify as “work” and fall outside of the Portal-to-Portal Act nevertheless do not require compensation because the activities require such little time that they are adjudged de minimis. Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976).
[http://laws.lp.findlaw.com/getcase/1st/case/021679&exact=1](http://laws.lp.findlaw.com/getcase/1st/case/021679&exact=1)
You can’t really do your work until your computer is on and your applications are running. So that probably qualifies as integral and indispensable. Similarly, you are probably required by your employer to shut down your computer at the end of the day. So those activities are probably not preliminary or postliminary.
\*
Compare\*
[http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=961544](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=961544) (time spent preparing for work and cleaning up after work were compensable time despite employer’s argument that employee’s workday started when they clocked in and out).
[http://laws.lp.findlaw.com/getcase/1st/case/021679&exact=1](http://laws.lp.findlaw.com/getcase/1st/case/021679&exact=1) (donning gear required by employer not a preliminary task).
> [@](#):
>
> The more the preliminary (or postliminary) activity is undertaken for the
> employer’s benefit, the more indispensable it is to the primary goal of the
> employee’s work, and the less choice the employee has in the matter, the
> more likely such work will be found to be compensable. . . . The ability
> of the employer to maintain records of such time expended is a factor.
> And, where the compensable preliminary work is truly minimal, it is the
> policy of the law to disregard it.
[http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=fed&navby=case&no=975096](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=fed&navby=case&no=975096) (discussing cases under the Portal-to-Portal Act and quoting \*Reich v. New York City Transit Authority \*, 45 F.3d 646, 650 (2d Cir. 1995)).
However, even if time is found to be compensable, the employer can still avoid liability if the time spend is\* de minimis\*. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=328&invol=680&pageno=689](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=328&invol=680&pageno=689) (adopting the de minimis rule).
Courts evaluate three factors in addition to the amount of time to determine whether otherwise compensable time is de minimis: “(1) the practical administrative difficulty of recording the additional time; (2) the size of the claim in the aggregate; and (3) whether `the claimants performed the work on a regular basis.’”
> **[FindLaw's United States Tenth Circuit case and opinions.](https://caselaw.findlaw.com/us-10th-circuit/1011256.html)**
>
> FindLaw's searchable database of United States Tenth Circuit decisions since
In this case, it would be easy for the employer to record the additional time. Supervisors could record it, or they could have empoyees submit time sheets or punch a clock.
Similarly, the claim in aggregate looks pretty large. Twelve minutes a day is an hour a week, fifty two hours a year. \*Id. \* (aggregating time over up to two years).
The work will occur every day. It is a regular activity. \*Id. \* (ten minutes of regular activity weighed in favor of employees).
If you want to complain contact the department of labor [here](http://www.dol.gov/).
Your state might have additional laws that apply, so you could also call the wage and hour division of your state department of labor.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [October 11, 2005, 11:29pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/8 "2005-10-11T23:29:18Z")
Best I could do online for Wisconsin law was a [case](http://www.wisbar.org/AM/CustomSource/ASPCode/caseshow.asp?Hig=on&SearchTerm=hours+of+work&urlpath=http://www.wisbar.org/res/sup/2000/98-0250.htm) holding that state patrol officers are entitled to compensation for time they spend on lunch breaks.
You could contact [these folks](http://www.dwd.state.wi.us/er/labor_standards_bureau/default.htm) for more information.
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### Author:  [@ENugent](https://boards.straightdope.com/u/ENugent)
#### Post date: [October 11, 2005, 11:47pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/9 "2005-10-11T23:47:07Z")
For what it’s worth, the Supreme Court is [currently considering](http://www.scotusblog.com/movabletype/archives/2005/10/tomorrows_argum_5.html) a case on walking/waiting time associated with the donning/doffing of safety equipment. You might get more clarification in that opinion, although the issue is not exactly the same.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [October 11, 2005, 11:54pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/10 "2005-10-11T23:54:38Z")
Good catch. I can’t access the briefs for some reason. ☹
So the Supremes may offer some guidance here.
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### Author:  [@Otto](https://boards.straightdope.com/u/Otto)
#### Post date: [October 12, 2005, 1:02am UTC](https://boards.straightdope.com/t/employment-law-q/325773/11 "2005-10-12T01:02:21Z")
> [@ENugent](#):
>
> For what it’s worth, the Supreme Court is [currently considering](http://www.scotusblog.com/movabletype/archives/2005/10/tomorrows_argum_5.html) a case on walking/waiting time associated with the donning/doffing of safety equipment. You might get more clarification in that opinion, although the issue is not exactly the same.
This sounds exactly like the case I was thinking about in my OP. I had thought it was a settled case from my employment law class from five years ago. Huh.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [October 12, 2005, 3:56pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/12 "2005-10-12T15:56:58Z")
> [@Otto](#):
>
> This sounds exactly like the case I was thinking about in my OP. I had thought it was a settled case from my employment law class from five years ago. Huh.
Interesting briefs, now that I can access them.
[http://www.abanet.org/publiced/preview/briefs/oct05.html#ibp](http://www.abanet.org/publiced/preview/briefs/oct05.html#ibp)
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [November 8, 2005, 6:47pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/13 "2005-11-08T18:47:51Z")
And the result is in. [SCOTUS finds time walking from between changing and production areas compensable; time spent waiting to don first piece of gear not compensable](http://a257.g.akamaitech.net/7/257/2422/08nov20051045/www.supremecourtus.gov/opinions/05pdf/03-1238.pdf)
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [November 9, 2005, 4:54am UTC](https://boards.straightdope.com/t/employment-law-q/325773/14 "2005-11-09T04:54:23Z")
> [@Gfactor](#):
>
> And the result is in. [SCOTUS finds time walking from between changing and production areas compensable; time spent waiting to don first piece of gear not compensable](http://a257.g.akamaitech.net/7/257/2422/08nov20051045/www.supremecourtus.gov/opinions/05pdf/03-1238.pdf)
Forgot to mention that **this is a pdf**.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [November 9, 2005, 12:22pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/15 "2005-11-09T12:22:48Z")
[Here is a link to a site where you can get it either as html or pdf. 🙂](http://www.law.cornell.edu/supct/html/03-1238.ZS.html)
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### Author:  [@pocelene](https://boards.straightdope.com/u/pocelene)
#### Post date: [November 9, 2005, 9:01pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/16 "2005-11-09T21:01:46Z")
> [@Otto](#):
>
You are now supported by the Supreme Court. [Roberts Court Sides With Workers](http://www.freerepublic.com/focus/f-news/1518884/posts)
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [November 10, 2005, 1:48pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/17 "2005-11-10T13:48:12Z")
It is important to note that the decision was unanimous. I always like unanimous rulings from the Supreme Court. It’s a very public slap when you can’t get one of them to agree with your position. :wally
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### Author:  [@Rico](https://boards.straightdope.com/u/Rico)
#### Post date: [November 10, 2005, 2:07pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/18 "2005-11-10T14:07:29Z")
\
Once again, we run across the infamous “putz” smiley.
**DSYoungEsq** , you slipped, right? You meant to post 🙂 this one, _right_?
Consider yourself warned. “Putzy” is inappropriate in GQ.
\
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [November 10, 2005, 2:28pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/19 "2005-11-10T14:28:08Z")
Of course the case isn’t on all fours with the OP. And the Court didn’t find all of the time claimed in the case to be compensable. They found time spent
> [@](#):
>
> waiting to don the first piece of gear that marks the beginning of the continuous workday. Such waiting–which is two steps removed from the productive activity on the assembly line–comfortably qualifies as a “preliminary” activity. The fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are “integral and indispensable” to a “principal activity” under Steiner. No limiting principle allows this Court to conclude that the waiting time here is such an activity without also leading to the logical (but untenable) conclusion that the walking time in Anderson would also be a “principal activity” unaffected by the Portal-to-Portal Act. (Syllabus).
So some ambiguity still remains with respect to \*\*Otto’\*\*s original question.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [November 10, 2005, 5:07pm UTC](https://boards.straightdope.com/t/employment-law-q/325773/20 "2005-11-10T17:07:36Z")
> [@Rico](#):
>
> \
>
> Once again, we run across the infamous “putz” smiley.
>
> **DSYoungEsq** , you slipped, right? You meant to post 🙂 this one, _right_?
>
> Consider yourself warned. “Putzy” is inappropriate in GQ.
>
> \
In what inconceivable way is it improper to use the Wally smiley to describe the losing side of a Supreme Court case that gets dimissed with a unanimous opinion?? I’m not referring to anyone here in this forum; I’m referring to generic people with whom we don’t even have contact!!
Consider me truly confused. I’d have thought that a forum like this wouldn’t regress to blanket application of a “rule.”
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