The Force of FLSA
Wage and hour violations have been extremely prevalent in the oil and gas industry over the past several years. In 2012, as part of an effort to put an end to countless violations of the Fair Labor Standards Act (FLSA), the United States Department of Labor (DOL) began a special enforcement initiative that targeted wage and hour violations in the oil fracking industry. However, despite their best efforts, many employers in the industry continue to skim wages from their employees. This is a high-stakes gamble, considering a victim of wage theft can be entitled to double damages if it is established his or her employer willfully violated the FLSA.
A wage and hour lawsuit was recently filed by current and former employees of Empire Scaffold, LLC (Empire), which is a company responsible for constructing scaffolds at large oil refineries. The employees alleged that they should have been paid for time spent riding buses from a remote parking lot to the refinery grounds where they were dropped off a few hundred yards from the location of their scaffolding duties.
Empire Strikes Back
Empire claimed a victory, as the 5th Circuit Court of Appeals recently determined that the time spent on the buses was not compensable. In reaching their decision, the 5th Circuit panel explained that, since enactment of the Portal to Portal Act of 1947, two primary groups of activities are considered exempt from pay claims under the FLSA: (1) walking, riding or traveling to and from the actual place of performance of an employee’s principal activity or activities; and (2) activities which are “preliminary to or postliminary to” such principal activities. The Court pointed out that “principal activities” includes those that are an “integral and indispensable part” of those activities (quoting Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014). In this case, the principal activities of the employees were erecting and dismantling scaffolding. The Court held the the time spent waiting was not compensable because it was neither “tied to nor necessary to the erection and dismantling of scaffolding – the work that the [plaintiffs] were employed to perform.”
The citation to the 5th Circuit’s full opinion is Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).
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