Working time claims/lawsuits take many forms and often arise out of seemingly unlikely circumstances. In a recent case, the Third Circuit ruled that temporary workers brought in to take over the jobs of locked out workers cannot receive pay under the FLSA for their time spent travelling to and crossing the picket line. The case is entitled Smith et al. v. Allegheny Technologies Inc. et al. and issued from the Third Circuit Court of Appeals.
The panel held that riding across the picket line in vans provided by an industrial strike staffing company was not their principal activity nor was it integral to their principal activity. Those are the factors that determine if a particular tangential (or preliminary) activity is compensable. The Court held that the travel time was not a principal activity just because the employer mandated particular travel procedures. The workers were driven to the facility, across the picket line, from their hotel, which was almost an hour away.
The Court noted that “for example, a temporary workforce’s commute would be a principal activity if members of that workforce were simply hired to cross the picket line in the morning, enter its factory, and then re-cross the picket line at night. Similarly, a complaint could allege facts that demonstrated the employee’s crossing the picket line was as important as the work the employee subsequently performed. But no such facts were alleged here.”
The Court also stated that this picket line crossing was not “integral or indispensable” to the job of making steel. The Court stated that “taking a Strom van to work was at least two steps removed from their steel production duties.”
This is the correct decision. This was, in essence, home-to-work commuting which is never compensable under the FLSA. Yes, there was an interesting variation on the theme but the Court found that the principle remained inviolate. Still, employers must always be wary of the pre-work activities their employees engage in as a collective action could be lurking around the corner.
Or just down the road…