Why might the Phillie Phanatic get paid for the time it takes to get into costume at the ballpark?

Phillie Phanatic.jpg

By Terry Foote – I took this photograph while attending a Spring Training game, CC BY-SA 4.0, Link

Because who is going to click if I had titled this post, “The Third Circuit clarifies when compensable work is the ‘integral and indispensable.'”

But, now that you’re here, you might as well stick around for this wage-and-hour lesson.

The Fair Labor Standards Act (FLSA) requires employers to pay covered, nonexempt workers overtime pay at a rate not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek.

But not all work is compensable — only the stuff that is “integral and indispensable” to an employee’s principal activity. So, what makes an activity integral and indispensable? The Third Circuit had yet to clarify. But yesterday, it did.

The case involved oil-rig workers claiming that they should be paid for changing into and out of their protective gear because they consider it both integral and indispensable to what the parties agree is their principal activity: drilling for oil and gas. The employer countered that changing into and out of protective gear are “preliminary” and “postliminary” activities, which is not compensable, as the Supreme Court ruled a few years ago in a case involving security screening at Amazon.

So, let’s define the test for “integral and indispensable,” at least it relates to donning protective gear.

We’ll start with when changing gear is integral. The Third Circuit considered three factors.

  1. Location. Putting on gear is not integral when employees have a meaningful option to change at home. Otherwise, changing is more likely to be integral to the work. The Third Circuit used the example of the Phillie Phanatic. Sure, he could change into his costume on the subway. But we wouldn’t expect it.
  2. Regulations. Regulations, especially specific regulations mandating certain gear be worn, suggest that gear is integral.
  3. Type of gear. The more specialized the gear, the more likely it is integral. But, even generic gear — old but clean work clothes — could still be integral.

Okay, now let’s nail down what indispensable means.

An indispensable activity isn’t strictly necessary, just reasonably so. The Third Circuit opined that a butcher could cut meat with dull knives, but it would impede production, result in poor cuts, and cause waste and accidents. Therefore, sharp knives are indispensable.

So, now that you have a sense of integral and indispensable — at least in the Third Circuit — there’s a caveat. If it only takes a few seconds or minutes each week to perform these duties, employers do not have to pay for these insignificant periods.

Bottom line: Gear is integral based on where employees change, whether regulations or industry custom require changing into gear at work, and how specialized the gear is. And whether the gear is indispensable depends on whether it is reasonably necessary for doing the work safely and well.


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