Reich v. New York City Transit Authority

• Decision Date: 17 January 1995
• Docket Number: D,No. 555,555
• Citation: 45 F.3d 646
• Parties: , 129 Lab.Cas. P 33,194, 2 Wage & Hour Cas.2d (BNA) 833 Robert B. REICH, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. NEW YORK CITY TRANSIT AUTHORITY, A Corporation, Defendant-Appellant. ocket 94-6104.
• Court: U.S. Court of Appeals — Second Circuit

Page 646

45 F.3d 646

63 USLW 2512, 129 Lab.Cas. P 33,194,

2 Wage & Hour Cas.2d (BNA) 833

Robert B. REICH, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. NEW YORK CITY TRANSIT AUTHORITY, A Corporation, Defendant-Appellant.

No. 555, Docket 94-6104.

United States Court of Appeals Second Circuit.

Argued Oct. 26, 1994.

Decided Jan. 17, 1995.

Joan Brenner, Washington, DC (U.S. Dept. of Labor, Thomas S. Williamson, Jr., Sol. of Labor, Monica Gallagher, Associate Sol. and William J. Stone, for App. Litigation), for plaintiff-appellee-cross-appellant.

Myron D. Rumeld, New York City (Proskauer Rose Goetz & Mendelsohn, Neil H. Abramson, of counsel), for defendant-appellant-cross-appellee.

Before VAN GRAAFEILAND, McLAUGHLIN and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge, in favor of the plaintiff, the United States Department of Labor ("DOL"), holding that the New York City Transit Authority (the "TA") is required to compensate each of its Police Department's canine handlers, under the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq. (the "FLSA"), as amended by the Portal-to-Portal Act, 29 U.S.C. Sec. 251, et seq., for the entire time spent commuting to and from work accompanied by the dog entrusted to him. The TA contends that such commuting time is not compensable under the FLSA.

For the reasons stated below, we reverse.

Factual Background

Police officers in the TA Police Department's canine unit ("handlers") patrol the subways accompanied by male german shepherd dogs. Each handler is responsible for feeding, grooming, training, and caring for his dog, and is required to take the dog home with him at the end of the working day. For reasons relating to the training of the dogs, the handlers are not permitted to use public transportation in taking their dogs to and from work. Upon accepting assignment to the canine unit (which is voluntary), each handler was informed that he would not be compensated for home care or commuting time. The applicable collective bargaining agreement made no provision for such compensation.

In December of 1989, the DOL commenced this action against the TA under Section 17 of the FLSA, 29 U.S.C. Sec. 217, seeking an injunction requiring the TA to pay the handlers overtime compensation both for time spent caring for the dogs at home and for commuting to and from work. The TA and DOL settled certain claims. In accordance with this settlement, the TA amended its collective bargaining agreement with the handlers' union, the Patrolmen's Benevolent Association, to include a provision entitling the handlers to compensation for limited time devoted to "dog care work" at home. ¹ Accordingly, the issue that remained to be resolved in litigation was whether, and to what extent, the handlers should be paid for commuting time.

The Proceedings Below

A three-day bench trial was conducted before Judge Spatt. See Reich v. New York City Transit Authority, 839 F.Supp. 171, 173 (E.D.N.Y.1993). The district court's findings included that handlers patrol the subways and other areas with their dogs to deter crime, arrest suspects and conduct searches; in order to create a bond between the handler and the dog, each handler bears sole responsibility for the care of the dog; the handlers consider their dogs "tools," as well as pets; all handlers must report to work at the Brooklyn Army Terminal to receive their daily assignments, and are required to commute using personal vehicles; ² during the commuting trip, dogs sometimes divert the handlers' attention or require care or clean up if they bark, or become unruly or sick. Id. at 173-74, 178.

The court found that, while the handlers' commuting time is not substantially increased, the dogs' presence does "restrict" the personal activity of the handlers and can cause inconvenience or a need to clean up. ³ Id. at 178.

Based on these findings, the court concluded that, following Graham v. City of Chicago, 828 F.Supp. 576 (N.D.Ill.1993), the TA was required to compensate the handlers for all time spent commuting to and from work. The court found that transporting the dogs is compensable "because that activity is not segregable from the primary activity the officers are engaged in." Id. at 181 (emphasis in original). The court ordered the TA to pay overtime back wages totalling $146,267.68. ⁴

Contentions on Appeal

On appeal, the TA argues primarily that the FLSA does not require it to compensate its handlers for commuting time. It contends that because the Portal-to-Portal Act exempts time spent "walking, riding, or traveling" to and from work, 29 U.S.C. Sec. 254(a)(1), no part of the commute, including that portion actually spent caring for the dog, is compensable. It contends further that the statute's exemption for activities that are "preliminary" or "postliminary" to the employee's "principal activities" also precludes liability for the commute. 29 U.S.C. Sec. 254(a)(2). As its secondary argument, the TA contends that, if any of the commuting time is deemed compensable, it should be limited to time spent actively caring for the dogs, which is de minimis. The DOL, on the other hand, contends that the entire commute should be compensated because the handlers are engaged in a "principal activity" during the commute, thereby rendering the travel and preliminary/postliminary exceptions inapplicable. That principal activity, in the DOL's view, is the "total care of the dog."

We find the principal positions of both parties exaggerated. We agree with the TA's secondary position that the only compensable portion of the commute is the time spent by the handlers actively caring for their dogs, and that the vast majority of the time, while the handler is driving and the dog is quietly occupying the back of the car, is not compensable work under the FLSA.

Discussion

I. The FLSA and the Portal-to-Portal Act

The purpose of the FLSA, passed in 1938, was to "guarantee[ ] 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, 64 S.Ct. 698, 705, 88 L.Ed. 949 (1944). The Act requires employers to pay overtime for "employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. Sec. 207(a)(1). While Congress made clear that employers are required to compensate employees for "work" or "employment," it did not define the contours of the type of "work" or "employment" that merited such compensation.

The Portal-to-Portal Act, which amended the FLSA in 1947, 29 U.S.C. Sec. 251, et seq., represented an attempt by Congress to delineate certain activities which did not constitute work, and therefore did not require compensation. It was passed in response to the Supreme Court's decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), which construed the FLSA to require compensation for such activities as walking from the factory gate to the workbench, and changing into work clothes. Id. at 692-93, 66 S.Ct. at 1195.

Congress made findings "that the [FLSA] has been interpreted judicially in disregard of long-established customs, ... thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, ... with the result that, if ... claims arising under such interpretations were permitted to stand, (1) the payment of such liabilities would bring about financial ruin of many employers ... [and] (4) employees would receive windfall payments ... of sums for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay...." 29 U.S.C. Sec. 251(a). The Act 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.

The TA contends that its liability is precluded by each of the two exemptions specified in the Act. See 29 U.S.C. Sec. 254(a)(1) and (2). The Act provides (with certain exceptions) that:

no employer shall be subject to any liability ... under the Fair Labor Standards Act of 1938 ... on account of the failure of such employer to pay an employee ... (1) ... [for] traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) [for] 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.

The TA contends that the "principal activity or activities" of the handlers are limited to patrolling the trains and related activities during the workday. It therefore contends that the commute, and the activities conducted by the handlers during the commute, are exempted from compensation by both the travel exemption and the preliminary/postliminary exemption, as they occur before and after the performance of the handlers' principal activities.

The DOL would define the "principal activities" of the handlers far more broadly, to include also feeding, caring for, and walking the dogs, maintaining a relationship with them, and transporting them. The DOL maintains that these aspects of the handlers' jobs are an important part of the handlers' duties and are performed on the commute and at home during the hours of absence from patrol duties. The DOL thus contends that the commute does not fall within the Portal-to-Portal exemptions, both because it involves principal activities and because it does not occur either "prior to the time on any particular workday at...