wall-clock-question-mark-1-small.jpgAuthored by Noah Finkel

The question of what is “work” in the modern economy, is not always easy to answer.  Those activities that qualify as “work” are compensable under the Fair Labor Standards Act and state law analogues.  Activities that are not “work” are not compensable.  While simple enough to express, making the distinction between these principles is often far from straightforward.  And, the stakes for getting the answer wrong may be enormous, especially when compounded by the “continuous workday” doctrine embraced by the Supreme Court in IBP, Inc. v. Alvarez.  Under that doctrine, employers may be obligated to pay not only for the first “integral and indispensable” activity of the day, but for all subsequent activities that are part of the continuous workday.

This topic is receiving an increased amount of attention.  As readers of this blog may recall from our July 14, 2011 post, the U.S. House of Representatives Committee on Education and the Workforce, Subcommittee on Workforce Protections held a hearing this past July to address the question, “Is the Fair Labor Standards Act meeting the needs of the twenty-first century workplace?”  Last week as reported in our September 22, 2011 post, the Congressional Research Service issued a report entitled, “The Fair Labor Standards Act, Overtime Compensation, and Personal Data Assistants,” which focuses on “[t]he increased use of personal data assistants (PDAs) and smartphones by employees outside of a traditional work schedule” and “questions about whether such use may be compensable under the FLSA.”

In this context, The ABA Journal of Labor and Employment Law has recently published an article tackling the meaning of “work” under the Fair Labor Standards Act.  The article, “Continuous Confusion: Defining the Workday in the Modern Economy,” which is authored by Seyfarth Shaw’s Richard Alfred and Jessica Schauer, argues that employers face a lack of guidance with respect to the concept of compensable time.  This confusion has resulted from the fact that the FLSA itself does not define “work,” the Supreme Court has largely neglected the issue since the 1940s, and regulatory interpretations have been subject to frequent shifts.  Moreover, because much of the authority that does exist is outdated–having changed little since the 1940s when the industrial workplace was the norm–the problem is exacerbated in the modern electronic economy.

The article focuses in particular on a 2010 “Administrator’s Interpretation” issued by the Department of Labor, which took the position that activities that may be excluded from compensable time under a particular statutory exception may nonetheless mark the beginning of the “continuous workday.”  If adopted by courts, this position could have adverse effects on another well-established carve-out from working time, the de minimis exception.  In the modern economy, where employees are able to use technology to perform work from anywhere, the erosion of that exemption could cause activities that employers have long rightly assumed to be non-compensable, such as commuting time, to become compensable under many circumstances.  The article calls for statutory and regulatory reform, as well as better guidance from the Supreme Court, as to what constitutes “work.”

In the meantime, employers should analyze carefully what activities may constitute compensable “work” and prepare themselves for the potential for uncertain and costly litigation over the compensability of various activities that could be regarded by some courts as compensable work.