Not every commute is work-related under the FLSA

Under the Fair Labor Standards Act, the employer has to pay you a fair day's pay for a fair day's work. The question in many of these cases is whether certain activities constitute "work" under the FLSA. That was the focus of a case decided by the Second Circuit this week.

The case is Singh v. City of New York, issued on April 29. The plaintiffs worked as fire alarm inspectors who were required by their employer to carry and keep safe necessary inspection documents during their commutes. For that reason, they wanted compensation for their commutes to and from work. The Second Circuit (Newman, Sotomayor and Wesley) said no.

As part of their job, the plaintiffs conducted field inspections of buildings in the city. As the Court of Appeals puts it: "On Friday mornings, inspectors normally report to [Fire Alarm Inspection Unit] headquarters to return completed inspection files for the past week and pick up new inspection files for the coming week. These files generally include documents describing the floor plans and fire alarm history of the buildings to be inspected; various inspection checklists, forms, and reports; and any correspondence between building owners and City agencies. Inspectors are responsible for keeping these documents safe from the time they pick them up on Friday morning until the time they return them on the following Friday. The plaintiffs estimate that the collective weight of these weekly assigned materials is between fifteen and twenty pounds."

The Second Circuit reminds us that "the Supreme Court has generally described work 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.” So if the plaintiffs have to carry work-related materials to and from work rather than store it at headquarters, why shouldn't they get paid for the commutes? For most people, commutes involve reading the paper or listening to music, or both. For these guys, they are safekeeping records as required by their employer. They also testified that carrying these documents affects their commutes because this requirement sometimes causes them to miss the subway as it slows down their walk. Sometimes, they are forced to wait for the next subway train in order to make room for the briefcase holding these documents.

In ruling against the plaintiffs, the Court of Appeals says that "[t]he issue is whether the “time is spent predominantly for the employer’s benefit or for the employee’s [which] is a question dependent upon all the circumstances of the case.” In addition, the FLSA was amended to limit pay for certain commutes. "While employees need not be compensated 'for or on account of' commuting to and from work, they must be compensated for any work performed during a commute that is 'integral and indispensable' to a principal activity of their employment." The reason the plaintiffs don't get paid for carrying these documents, according to the Second Circuit, is that "the mere carrying of a briefcase without any other active employment-related responsibilities does not transform the plaintiffs’ entire commute into work." In other words, carrying the documents to and from work may be important, but it's not so important that the City has to pay them for the commutes. As for the additional commuting time required by this job requirement, it's too minimal to make a difference under the FLSA. In sum, the Court holds:

Carrying a briefcase during a commute presents only a minimal burden on the inspectors, permitting them freely to use their commuting time as they otherwise would have without the briefcase. Whether it be reading, listening to music, eating, running errands, or whatever else the plaintiffs choose to do, their use of the commuting time is materially unaltered. While the City certainly benefits from the plaintiffs’ carrying these materials, it cannot be said that the City is the predominant beneficiary of this time.