In the federal sector, where external law is within the domain of labor arbitration, the issue that must be decided at arbitration may well be related to violations of the law rather than the terms of a collective bargaining agreement.
In this case, the Arbitrator was asked to settle the question of whether the employer violated the FLSA by failing to compensate federal corrections officers for time spent undergoing a security screening at the beginning of their shift. The Arbitrator ruled that it had and asserted the security screenings were “directly related to the [grievants’] ability to perform their jobs…”, since, if they smuggled in contraband, they would essentially cease to function as corrections officers. The Arbitrator ordered, in addition to other remedies, that the corrections officers receive backpay of 10 or 15 minutes (depending on assignment) of overtime per shift.
The Employer appealed, and the Federal Labor Relations Authority (the Authority) held that the security screenings were not an integral part of the work the grievants were employed to perform. The Authority required that the standard established in Integrity Staffing Solutions, Inc. v Busk et al. (2014) be applied to the case. Integrity Staffing made productive work-related activity the basis for determining compensability, rather than whether it was required by the employer or was primarily for the employer’s benefit. As a result, the award was overturned, in part because it lacked sufficient factual premise to support a conclusion that the security screenings were an integral part of the officers’ core work responsibilities.
The lessons offered by this ruling are useful to labor relations practitioners in all sectors. Some aspects of the FLSA are complex and difficult to navigate, so missteps do occur. It is possible, though, to minimize confusion, conflict and potential harm by taking pro-active steps to ensure workplace practices comply with collective bargaining agreements and applicable laws. The next time a question of compensability arises, try to avoid a knee-jerk decision. Do a little work on the front end to make sure you’re able to justify your position through to arbitration, should that become necessary. Here are some factors to consider:
- What is the nature of the task in question? Is it a discrete activity that can be performed in isolation or is it dependent upon or consequential to activity that is essential to the job. Take guidance from the Portal-to-Portal Act which exempts preliminary and postliminary activities. By way of example (admittedly a very simplified one), the fact that an analyst must ride two sets of elevators in order to get to her workstation does not make this activity compensable. She was not hired to ride elevators but to conduct complex analytical work.
- Would the exclusion of this activity make the employee unable to perform any critical function of the work they are employed to do? If so, you may be looking at a compensable activity. If our analyst did not ride the elevator, she would still be able to do her job if allowed to work from home or the coffee shop in the lobby. She could not reasonably perform her analytical work if she didn’t first gather and assemble the relevant data.
- What level of effort, expertise or other skill or knowledge is required of the employee in order to complete the task? If the activity requires some specific knowledge or skill, it’s likely compensable. Riding the elevator requires no verifiable skill or specialized knowledge and is effectively managed by the most unqualified toddler who might find his way into one. Activities involved in identifying and assembling appropriate data do require a certain skillset. If the activity is preliminary or postliminary and requires no specialized skill on the part of the employee, you may generally assume it to be noncompensable.
- Consider how closely tied the activity is to the critical elements of the work the employee is expected to perform. Activities that are similar, or closely related to, the essential responsibilities of the job, are likely compensable. It’s useful to talk with those most familiar with the work to understand how a particular task fits within the overall responsibilities of the job, and how it affects or is affected by other critical tasks.
- How are similar tasks accounted for? If there are similar jobs within the organization or the bargaining unit, how are those tasks treated? What factors play into whether they are compensated or not, and are they reflective of the situation at hand? Again, these situations are heavily fact-dependent, but evaluating and comparing similar situations could help you focus on the most critical points to consider.
- What has been the bargaining history on related matters? Where this is no clear contract language or established practice, the answers to questions of compensability may sometimes be found by looking under similar rocks. If the parties have had any bargaining history on similar matters, what positions have they previously taken? Review contract language, memoranda of understanding, grievance files or bargaining notes to get a sense of how similar matters were previously dealt with. This can shed light on any standing concerns, objections or impediments that should be considered when determining how best to approach this issue.
These pointers should not be taken to imply that the determination of what is compensable work is a simple task; it isn’t. It can be difficult to keep up with the impacts technological, organizational and other changes can have on working conditions, or to anticipate how they might play out in the future. The next time you’re engaged in bargaining on issues that affect the way employees get their work done, take the time to identify whether there are new or changed tasks that may or may not be compensable, and come to an agreement about how they will be handled. If a disagreement arises down the line, you would already have identified and tested the factors that guided your decisions, before you’re asked to defend them at arbitration.
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Charlene MacMillan 