DENNIS JACOBS, Chief Judge.
In these consolidated appeals under the Fair Labor Standards Act ("FLSA"), employees of a nuclear power station sue their present and former employers (variously) challenging computation of overtime and seeking payment of wages for the time it takes for security-related procedures at ingress to the plant, for suiting up, for some intervening steps, and for the same in reverse. FLSA, 29 U.S.C. § 201 et seq., as amended by the Portal-to-Portal Act, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)). The plaintiffs work at the Indian Point II nuclear power plant ("Indian Point" or "the plant"), which was owned and operated by defendant Consolidated Edison Company of New York, Inc. ("Con Ed"), and was sold in September 2001 to defendant Entergy Nuclear Operations, Inc. ("Entergy").
In the action against Con Ed, plaintiffs claim that the method of calculating the hourly overtime rate inadequately accounts for the premium paid to those who work the nightshifts. The United States District Court for the Southern District of New York (McMahon, J.) dismissed, and plaintiffs moved for leave to file an amended complaint. The proposed amended complaint asserted the different and distinct FLSA claim to be paid wages for time spent in security procedures and in "donning and doffing" required protective gear (to use the term of art). Judge McMahon denied the motion for leave to amend as futile.
The suit against Entergy asserted claims which were substantially similar to those in the proposed amended complaint against Con Ed.
On appeal, each case presents the question whether ingress and egress and donning and doffing are compensable under the FLSA. Also at issue is the propriety of Con Ed's method of calculating plaintiffs' hourly overtime rate. There are also state law claims; but it is stipulated that those claims are controlled by our adjudication of the FLSA claims.
The FLSA, 29 U.S.C. § 201 et seq., was enacted to ensure that employees receive a "fair day's pay for a fair day's work," Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) (quoting 81 Cong. Rec. 4983 (1937) (message of President Franklin D. Roosevelt)), superseded by statute, Portal-to-Portal Act, 61 Stat. 86-87, as recognized in Trans World Airlines v. Thurston, 469 U.S. 111, 128 n. 22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). On the pay end, the FLSA "guarantee[s] compensation for all work or employment engaged in by employees covered by the Act." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602-03, 64 S.Ct. 698, 88 L.Ed. 949 (1944). But not all work-related activities constitute "work or employment" that must be compensated.
In a short-lived 1946 holding, the Supreme Court construed the FLSA to require pay for the time employees spent walking on the employer's premises before clocking in, and for donning and doffing aprons and overalls. Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 691-93, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute, Portal-to-Portal Act, 61 Stat. 86-87, as recognized in Reich v. N.Y. City Transit Auth., 45 F.3d 646, 649 (2d Cir.1995). In 1947, the Portal-to-Portal Act created two exceptions from FLSA-mandated compensation:
29 U.S.C. § 254(a). Each of the two subsections bears upon plaintiffs' claims.
Under subsection (1), no pay is required for travel to and from the place where the employee performs his "principal activities"; the FLSA regulations define "principal activities" as those "which the employee is employed to perform." 29 C.F.R. § 790.8(a) (internal quotation marks omitted). Subsection (2) of the Portal-to-Portal Act undid the Anderson holding that required compensation for putting on aprons and overalls, and thus "was intended to relieve employers from liability for preliminaries, most of them relatively effortless, that were thought to fall outside the conventional expectations and customs of compensation." N.Y. City Transit Auth., 45 F.3d at 649. A substantial body of case law discusses subsection (2)'s distinction between (on the one hand) preliminary and postliminary activities and (on the other) the principal activities of employment; but the distinction remains elusive in application.
Nine years after the Portal-to-Portal Act, the Supreme Court considered whether changing clothes and showering were among the principal work activities for workers at a battery plant who "must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower." Steiner v. Mitchell, 350 U.S. 247, 248, 76 S.Ct. 330, 100 L.Ed. 267 (1956). After allowing that preliminary and postliminary "changing clothes and showering under normal conditions" were indisputably non-compensable, id. at 249, 76 S.Ct. 330, the Court described the highly corrosive and toxic substances that permeate the battery plant, and ruled that:
Id. at 256, 76 S.Ct. 330 (emphasis added). Thus, after Steiner, activities that are "integral and indispensable" to principal activities are compensable under the FLSA (as well as the principal activities themselves).
In a more recent case, IBP v. Alvarez, the parties left uncontested the finding that the donning and doffing of "unique protective gear" constitute "principal activities"; at issue in the Supreme Court was: whether employees must be paid for time waiting to enter the locker room, time in transit from the locker room to the job-site, and time in transit back to the locker room. 546 U.S. 21, 29-30, 39-40, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005).
The Court first held that "any activity that is `integral and indispensable' to a `principal activity' is itself a `principal activity' under . . . the Portal-to-Portal Act." Id. at 37, 126 S.Ct. 514. Since it was uncontested that the specialized protective gear was "integral and indispensable" under Steiner, the donning and doffing was itself a "principal activity." And because employees are paid for a continuous workday—which begins with the first principal activity and ends with the last—the Portal-to-Portal Act has no application once the workday has begun. Id. at 28-29, 126 S.Ct. 514 (citing 29 C.F.R. § 790.6(a)). Therefore, "during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is [compensable]." Id. at 37, 126 S.Ct. 514.
Nevertheless, the Court held that awaiting the first principal activity of the workday is not itself a principal activity, id. at 40, 126 S.Ct. 514; it cited 29 C.F.R. § 790.7(g), which "characterizes the time that employees must spend waiting to check in . . . as generally a `preliminary' activity covered by the Portal-to-Portal Act." Id. at 41-42, 126 S.Ct. 514. As the Court emphasized, "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." Id. at 40-41, 126 S.Ct. 514.
Before the Indian Point employees can perform the tasks for which they were hired, they spend between ten and thirty minutes a day passing through multiple layers of security and suiting up. Am. Compl. ¶ 19. The question is whether these activities are "`integral and indispensable' to a `principal activity' under Steiner," IBP, 546 U.S. at 39-40, 126 S.Ct. 514, and therefore (under IBP) principal activities in themselves. If so, they are compensable under the FLSA.
We review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6). E & L Consulting, Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 28 (2d Cir.2006). For the purpose of such a review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving
Paragraph 15 of the amended complaint against Entergy (which is substantially similar to the proposed amended complaint against Con Ed, see n. 1, supra) specifies the activities for which pay is sought:
Am. Compl. ¶ 15.
Plaintiffs' contention that these activities are "integral and indispensable to the performance of [their] principal activities,"
"Indispensable" is not synonymous with "integral." "Indispensable" means "necessary." See Webster's Third New Int'l Dictionary (Unabridged) 1152, 1510-11 (1986). "Integral" means, inter alia, "essential to completeness"; "organically joined or linked"; "composed of constituent parts making a whole." Id. at 1173. At the same time, "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary." Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945). The caselaw gives better guidance by apt examples: Sharpening the knife is integral to carving a carcass, Mitchell, 350 U.S. at 263, 76 S.Ct. 337; powering up and testing an x-ray machine is integral to taking x-rays, Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 717-18 (2d Cir. 2001); and feeding, training and walking the dog is integral to the work of a K-9 officer, Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir.1995), limited in part by IBP, 546 U.S. at 21, 126 S.Ct. 514. See also IBP, 546 U.S. at 40-41, 126 S.Ct. 514 (observing that activities which are "necessary" (or indispensable) to a principal activity are not thereby "integral and indispensable");
Steiner is in one sense the most apt analog, dealing as it does with donning and doffing gear that protects against workplace dangers that transcend ordinary risks. At issue in Steiner was exposure to corrosive and toxic substances that permeated a battery plant; at issue here is the security of a nuclear power plant. The analogy is, however, unsustainable. The Steiner opinion invites a narrow interpretation: "[I]t would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees." 350 U.S. at 256, 76 S.Ct. 330. Without the taking of the measures required, the environment of the battery plant could not sustain life—given the toxic substances in liquid, solid, powder and vapor form (and in the dust of the air) that "permeate[d] the entire [battery] plant and everything and everyone in it." Id. at 249, 250, 76 S.Ct. 330. Steiner therefore supports the view that when work is done in a lethal atmosphere, the measures that allow entry and immersion into the destructive element may be integral to all work done there, just as a diver's donning of wetsuit, oxygen tank and mouthpiece may be integral to the work even though it is not the (underwater) task that the employer wishes done.
By contrast, the activities for which plaintiffs here seek compensation, while arguably indispensable, are not integral to their principal activities.
A. Ingress and Egress Security Procedures
The activities required to enter and exit Indian Point—from waiting in line at the vehicle entrance through the final card-swipe and handprint analysis—are necessary in the sense that they are required and serve essential purposes of security; but they are not integral to principal work activities. These security-related activities are modern paradigms of the preliminary and postliminary activities described in the Portal-to-Portal Act, in particular, travel time. The plain wording of subsection (1) of the Portal-to-Portal Act exempts from the FLSA: "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." 29 U.S.C. § 254(a)(1); see also 29 C.F.R. § 790.7(c).
Plaintiffs argue that the Portal-to-Portal Act was enacted when the time-consuming security measures at issue may not have been envisioned, and there is some force to the observation that security measures at sensitive facilities (and elsewhere) are becoming increasingly invasive, layered and time-consuming. But the text of the statute does not depend on the purpose of any preliminaries, or how much time such preliminaries may consume. Travel time was held to be "normal" (and
B. Donning and Doffing of Protective Gear
Similarly, a helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs' principal activities without being integral.
* * *
Because plaintiffs can prove no set of facts entitling them to compensation for time spent entering and exiting the facility, and donning and doffing a helmet, safety glasses and boots, we affirm the dismissal of plaintiffs' claims against Entergy and the denial by both district judges of leave to amend the complaints.
Plaintiffs challenge the grant of summary judgment dismissing their overtime-compensation claims against Con Ed. According to plaintiffs, the method used to calculate the hourly rate for overtime work inadequately accounted for the premium rate paid for nightshifts at the plant.
We review de novo the district court's grant of summary judgment, construing the facts in the light most favorable to the non-moving party. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The FLSA generally requires that an employee who works more than forty hours in a given week be paid for the excess time at a rate "not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1) (emphasis added). The regular rate is "all remuneration for employment paid to . . . the employee," minus certain exceptions inapplicable here. Id. at § 207(e). As the Supreme Court has explained, it is "the hourly rate actually paid the employee for the normal, non-overtime workweek," and "must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments." Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424-25, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945).
The collective bargaining agreement ("CBA") between plaintiffs and Con Ed created a three-tiered compensation structure: (i) "straight" or "basic" time for day shifts, (ii) an 8% premium for the evening shift (between 6:00 p.m. and midnight), and (iii) a 10% premium for the nightshift (between midnight and 7:00 a.m.). These latter two premiums are collectively referred to as the nightshift differential.
This Court has already validated the weighted average method of determining the regular rate, which we described as "properly calculated by adding all of the wages payable for the hours worked at the applicable shift rates and dividing by the total number of hours worked." Brock v. Wilamowsky, 833 F.2d 11, 14 (2d Cir. 1987); see also id. at 14, 17 (approving the district court's conclusion "that the statutory regular rate was . . . the weighted average hourly rate of all compensation received by the employee").
Moreover, the FLSA regulations expressly approve the weighted average method:
29 C.F.R. § 778.115.
Finally, plaintiffs' argument under the CBA succumbs to the rule that "the regular rate of pay cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee[;] it must be drawn from what happens under the employment contract." Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 464, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948) (emphasis added); see also Walling, 325 U.S. at 424, 65 S.Ct. 1242 (observing that the regular rate "is not an arbitrary label chosen by the parties; it is an actual fact"); 29 C.F.R. § 778.109 (same). Because Con Ed's weighted average method adequately accounts for the compensation actually received by employees in calculating the regular rate, we affirm the district court's grant of summary judgment to Con Ed.
* * *
For the foregoing reasons, the judgments of the district courts are affirmed.
45 F.3d at 652 (quoting Anderson, 328 U.S. at 692, 66 S.Ct. 1187). Three factors bear upon the determination of whether the time spent in a particular activity is de minimis: (1) the administrative difficulty of recording the time; (2) the size of the claim in the aggregate; and (3) whether the tasks occur regularly. Id. (citing Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984)).
The tasks here are repeated daily and there would be little administrative difficulty in recording them. As to the size of the potential claim, plaintiffs' counsel was asked at argument: "Is there anything special about these shoes or glasses, or safety caps that takes longer than what we could, in or own experience, know about putting [them] on?" Counsel responded: "Not to my knowledge." And counsel acknowledged that these shoes are not somehow more complicated than an ordinary shoe.
The pleadings would not contradict a conclusion that the time so spent would be de minimis; but we decide this case on the ground that the activities at issue are preliminary and postliminary because that conclusion is more easily arrived at on the pleadings. Moreover, it is perhaps unclear (after IBP's continuous workday rule) whether the de minimis test measures only the first integral and indispensable activity of the day, or includes as well all intervening steps that precede the next principal activity of the continuous workday.