Lindow v. U.S.

• Citation: 738 F.2d 1057
• Decision Date: 27 July 1984
• Docket Number: No. 82-3151,82-3151
• Parties: 26 Wage & Hour Cas. (BN 1391, 101 Lab.Cas. P 34,583 Ted L. LINDOW, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1057

738 F.2d 1057

26 Wage & Hour Cas. (BN 1391, 101 Lab.Cas. P 34,583

Ted L. LINDOW, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 82-3151.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1983.

Resubmitted Feb. 27, 1984.

Decided July 27, 1984.

Stephen E. Lawrence, Richardson, Murphy & Nelson, Portland, Or., for plaintiffs-appellants.

Sidney I. Lezak, U.S. Atty., Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before CHOY and CANBY, Circuit Judges, and ORRICK ^*, District Judge.

CHOY, Circuit Judge:

Plaintiffs appeal from the district court's denial of their claim for overtime compensation under the Fair Labor Standards Act (FLSA). We affirm.

Employees and former employees of the Northern Division of the Army Corps of Engineers (Corps) worked as power plant operators, control room operators and general foremen of eight hydroelectric dams located along the Columbia and Snake rivers. They seek overtime compensation for 15 minutes of work per day for a period commencing 3 years prior to the filing of their lawsuit. They allege that the Corps required them to report to work 15 minutes before the start of their scheduled shifts to (1) review the log book regarding previous shift activities and plant conditions; (2) exchange information and clarify log entries with the employees leaving their shifts; (3) be available to relieve an outgoing employee who was operating the navigational locks at the time of the shift change; and (4) open and close project gates to gain entry to the dam projects. The Corps did not compensate plaintiffs for this pre-shift work. The parties consented to a trial before a United States Magistrate.

I. REVIEW OF THE LOG BOOK AND EXCHANGE OF INFORMATION

The district court found that employees arrived at work about 15 minutes early each day and sometimes used part of this time to read the log book and to exchange information. For the rest of the time, the court found that "they engaged in social conversation and performed non-work related activities." The court found that the employees spent an average of 5 to 15 minutes, usually closer to 5 minutes, to read the log book, and 2 to 3 minutes to exchange information. Therefore, plaintiffs spent about 7 to 8 minutes per day reading the log book and exchanging information, though this work was not always performed before their shifts.

A. Characterization of Pre-Shift Activities.

The district court held that these pre-shift activities were preliminary activities and therefore exempt from the overtime requirements. Under section 4(a) of the Portal-to-Portal Act, employers are not required to pay overtime compensation for "activities which are preliminary to or postliminary to said principal activity or activities ...." 29 U.S.C. Sec. 254(a)(2). Pre-shift activities are compensable if they are an "integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 100 L.Ed. 267 (1956). The district court found that the reading of the log book and exchanging of information were necessary and integral parts of the employees' principal activities, but held that they were preliminary activities because they were "neither necessary nor required to be performed before the start of the shift."

The evidence supports the district court's finding that the Corps did not require the employees to report early. Most of the employees testified that they were never specifically ordered to report early, but that it was the custom to do so. They were never formally reprimanded for not arriving early. There was evidence that employees felt pressure from fellow workers to arrive early so that outgoing employees could leave 5 minutes early. Moreover, on July 18, 1977, the Corps issued a letter, known as the Westrick letter, stating its policy that employees were not required to arrive early to review the log book and exchange information.

The court also found that the employees did not have to read the log book and exchange information prior to the start of their shifts. The evidence showed that the employees did not always finish reading the log book or even look at the log book before their shifts, often because they did not arrive early enough to work. Moreover, all the necessary information could be derived from the log book.

Plaintiffs, however, correctly argue that the district court erred in holding that an employer must require an employee to arrive early to be liable for overtime compensation. ¹ An employer must pay overtime when he "suffers" or "permits" an employee to work in excess of 40 hours. 29 U.S.C. Secs. 203(g), 207(a). We have interpreted the words "suffer" or "permit" to mean "with the knowledge of the employer." Fox v. Summit King Mines, 143 F.2d 926, 932 (9th Cir.1944). Relying on Fox, we have more recently held that "an employer who knows or should have known that an employee is or was working overtime" is obligated to pay overtime. Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981). "An employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation." Id.

Plaintiffs also correctly assert that the district court erroneously ruled that the pre-shift work was preliminary because the employees could have performed it during their regular working hours. As the Department of Labor stated in an interpretive bulletin, "Congress intended the words 'principal activities' to be construed liberally ... to include any work of consequence performed for an employer, no matter when the work is performed." 29 C.F.R. Sec. 790.8(a) (footnote omitted). We show great deference to an administrative interpretation given by the agency charged with the statute's administration. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Dunlop v. City Electric, Inc., 527 F.2d at 398 & n. 5 (Sec. 790.8(a) given great weight). The district court cites no authority, nor has this court found any, which suggests that an employee's labor is not integral and indispensable if it could have been performed during regular hours. As long as the work is "suffered" or "permitted" outside of normal hours, the work is compensable.

Despite these erroneous rulings, we affirm the district court's decision. Although prior to the Westrick letter the Corps "suffered" or "permitted" the overtime work ², plaintiffs reported early for their own convenience. Employees who report early to relieve outgoing employees before the end of their shifts do so for their own convenience rather than for the company's benefit. See Blum v. Great Lakes Carbon Corp., 418 F.2d 283, 287 (5th Cir.1969); Jackson v. Air Reduction Co., 402 F.2d 521, 524 (6th Cir.1968). In this case, the district court found that "it was often the practice of the employees to leave work up to 5 minutes before the end of their shifts. This was possible only if the replacement shift was present and ready to assume the shift 5 minutes early." Moreover, as the district court concluded, evidence showed that prior to the start of their shifts, plaintiffs "engaged in social conversation and performed non-work related activities." Many of the employees testified that they drank coffee and socialized before their shifts. To the extent plaintiffs arrived early for these reasons, their claim for overtime compensation is without merit.

Once the Corps issued the Westrick letter, it did not even "suffer" or "permit" the overtime work. An employer cannot escape its obligation to pay overtime compensation for necessary and indispensable work that it expects to be performed outside of normal hours or that must be performed prior to a shift simply by instructing employees not to report early. See Wirtz v. Bledsoe, 365 F.2d 277, 278 (10th Cir.1966); Handler v. Thrasher, 191 F.2d 120, 123 (10th Cir.1951). The employees in this case, however, could have performed the pre-shift work during regular hours. The Westrick letter, therefore, relieved the Corps of its liability to pay overtime compensation. ³ Otherwise, the Corps would have no means of protecting itself from claims of overtime compensation. Moreover, the Corps did not pressure or even encourage the employees to report early to work. As the district court found, the Corps did not formally reprimand, dock, or give a poor evaluation to any employee for not reporting early.

B. The De Minimis Doctrine.

The district court held that the 7 to 8 minutes spent by employees reading the log book and exchanging information, even if not preliminary, was de minimis and therefore not compensable. Insofar as plaintiffs engaged in pre-shift work, we agree with the district court that the time was de minimis.

This is a case of first impression for this court applying the de minimis rule to claims of overtime compensation under FLSA. As a general rule, employees cannot recover for otherwise compensable time if it is de minimis. The Supreme Court noted:

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 1195, 90 L.Ed. 1515 (1946).

An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work. There is no precise amount of time that may be...