Time Spent Clearing Security Not Compensable

The Second Circuit Court of Appeals recently held that time spent by employees undergoing security checks when entering their place of employment is not compensable under the Fair Labor Standards Act (“FLSA”). Gorman v. Con. Ed. Corp., 2007 U.S. App. LEXIS 12450 (2d Cir. 2007). The case involved employees at a nuclear power plant who were required to undergo lengthy security procedures upon entering or exiting the facility. The process intensified following the attacks on September 11.

The court noted that for pre-shift activities to be compensable under the FLSA they must be both “indispensable” and “integral” to the employees’ “principal activities,” defined as activities for which they were hired. Although the court recognized that the up to 30 minutes spent each day complying with the security procedure was significant, and an “indispensable” or necessary element of working at the plant, it found the security requirements were not an “integral” part of the employees’ actual job duties. As a result the time was not compensable.

In analyzing the issue, the court compared the time spent entering the plant with traditional “travel time” commuting to work, which is not compensable. While post September 11 security compliance has lengthened the commuting time for some employees, such periods may be treated as unpaid time even when the delays are caused by employer policies.

While this case involved a nuclear facility, many employers have increased security procedures that have lengthened the time employees spend getting to their actual work location. The court has clearly articulated that such time is not compensable and that security related delays found in the post September 11 world are a price to be borne by all, not just employers.