Gorman v. Consolidated Edison Corp., Docket No. 05-6546-cv.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Dennis Jacobs
• Citation: 488 F.3d 586
• Parties: James H. GORMAN, Jr. et al., Plaintiffs-Appellants, Edgardo Carballo, Craig M. Cuvelier, Frederick J. Galbraith, Robert Veteramo, Richard P. Jones, James M. Cillo, Plaintiffs, v. THE CONSOLIDATED EDISON CORPORATION, Defendant-Appellee. James H. Gorman, Jr. et al., Plaintiffs-Appellants, v. Entergy Nuclear Operations, Inc., Defendant-Appellee.
• Decision Date: 30 May 2007
• Docket Number: Docket No. 05-6546-cv.,Docket No. 06-2241-cv.

488 F.3d 586 James H. GORMAN, Jr. et al., Plaintiffs-Appellants,
Edgardo Carballo, Craig M. Cuvelier, Frederick J. Galbraith, Robert Veteramo, Richard P. Jones, James M. Cillo, Plaintiffs,
v.
THE CONSOLIDATED EDISON CORPORATION, Defendant-Appellee.
James H. Gorman, Jr. et al., Plaintiffs-Appellants,
v.
Entergy Nuclear Operations, Inc., Defendant-Appellee. Docket No. 05-6546-cv. Docket No. 06-2241-cv. United States Court of Appeals, Second Circuit. Argued: February 15, 2007. Decided: May 30, 2007.

[488 F.3d 588]

Joseph P. Carey, Joseph P. Carey, P.C., Fishkill, N.Y. (Annette G. Hasapidis, Law Offices of Annette G. Hasapidis, South Salem, NY, on the brief), for Plaintiffs-Appellants.

David J. Reilly (Mary K. Schuette, Eva L. Martinez, Barbara Jane Carey, on the brief), Consolidated Edison Company of New York, Inc., Law Department, New York, NY, for Defendant-Appellee The Consolidated Edison Corporation.

Jonathan M. Kozak (Joseph M. Martin, on the brief), Jackson Lewis LLP, White Plains, NY, for Defendant-Appellee Entergy Nuclear Operations, Inc.

Before: JACOBS, Chief Judge, CALABRESI, Circuit Judge, and

[488 F.3d 589]

BERMAN, District Judge.^*

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.¹ The district court (Robinson, J.) granted Entergy's motion to dismiss, and denied plaintiffs' motion for leave to amend as futile.

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.

We affirm.

I

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.

488 F.3d 590

Kavanagh v. Grand Union Co., Inc., 192 F.3d 269, 271-72 (2d Cir.1999).

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:

(1) 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, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

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:

activities performed either before or after the regular work shift . . . are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [subsection 1 of the Portal-to-Portal Act].

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).

488 F.3d 591

On the same day Steiner issued, the Supreme Court decided a slaughterhouse case, holding that knife-sharpening is "an integral part of and indispensable to the various butchering activities for which [the workers] were principally employed." Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956). The Mitchell Court shed light on the meaning of "integral" (as used in Steiner): sharpening knives is both indispensable to the task of butchering animals, and intrinsically "connected with" it. Id. at 262, 76 S.Ct. 337. The Court cited the testimony of a supervisor to the effect that "a dull knife would slow down production . . ., affect the appearance of the meat as well as the quality of the hides, cause waste and make for accidents; `that a knife to be of any practical value in a knife job has to be sharp.'" Id. (ellipses omitted).

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...