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Aguilar v. Management & Training Corp.

United States District Court, D. New Mexico

October 24, 2017

MARISELA AGUILAR, et al., Plaintiffs,


         THIS MATTER comes before the Court upon Defendant's Opposed Motion for Summary Judgment on Liability, filed July 21, 2017 (Doc. 160). Having reviewed the parties' pleadings and the applicable and controlling law, the Court finds that Defendant's summary judgment motion is well-taken and, therefore, is granted with respect to Plaintiffs' claims asserted under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”) and the New Mexico Minimum Wage Act, N.M.S.A. §§ 50-4-1 to 50-4-33 (“NMMWA”).


         This is a collective/class action lawsuit filed by current or former employees of Defendant Management and Training Corporation (“Defendant” or “MTC”) who claim they were not paid for some of their hours worked on assignment for MTC at the Otero County Prison Facility near Chaparral, New Mexico. The lawsuit asserts claims for unpaid wages and overtime, as well as other statutory damages and the recovery of attorneys' fees, under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”) and/or the New Mexico Minimum Wage Act, N.M.S.A. §§ 50-4-1 to 50-4-33 (“NMMWA”). Plaintiffs contend they should be compensated for various pre- and post-shift activities which they argue are compensable, namely (a) waiting at the prison, (b) clearing security, (c) taking and returning equipment, and (d) meeting and reporting to other detention officers. (First Am. Compl. ¶¶ 20 - 22.) In addition, Plaintiffs accuse MTC of unlawful “rounding” practices with respect to their compensation.

         I. Parties' Positions

         The issues must be considered in the context of the challenged activities performed by the detention officers to and from work. Plaintiffs claim that they should be paid for the following activities to and from their posts:

1. Parking Lot to Outside Double Gate to Prison
Officers walk through an outside double gate to enter the prison on their way from the parking lot. Once inside, they walk to metal detector.
2. Metal Detector
Clearance through metal detector where the officers empty their pockets and take off their jackets for a security clearance.
3. Pre-Shift Assignment, Briefing and Paperwork
After passing through the metal detector, the officers receive their post assignments. Defendants acknowledge that in addition to post assignments, officers may receive additional information about what is happening at the assigned post, and that this takes an additional one or two minutes. Plaintiffs describe this additional information as a “pre-shift briefing” which includes a verbal post assignment, a briefing on operational and security issues and the distribution of paperwork for most posts. Plaintiffs point out that prior to December 2016, these activities occurred before clocking in at Time Clock. After December 2016, the “pre-shift briefing” occurred after clocking in. (See Deft's Fact 8).
4. Key Retrieval
A few steps after the time clock is the area where officers go to a fingerprint-activated key box to retrieve keys they'll need for their shifts. They then then walk through another set of security doors to central control and the inmate areas.
5. ID Verification & Equipment Collection
On passing into the central control facility, Officers pass their ID's to officers inside the central control who review them, then pass them back through a different side of the wall. Officers then collect equipment such as pepper spray, handcuffs and radios from central control, although parties dispute whether all of the officers are required to pick up equipment. (D's Fact 18 & response)
6. Arrival at Post and “Pass-Down”
Once an officer arrives at his post, there is a “pass-down” or overlap period between the shifts where the officer going off shift can convey information about the post to the officer coming on. This exchange occurs on the post.

         II. Legal Standards

         A. Continuous Workday

         The FLSA does not specifically define “work, ” so courts must determine on a case-by-case basis whether an employee's activities are compensable under the FLSA. See Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir.2006) (citations omitted); 29 C.F.R. § 785.6. The Department of Labor has adopted the “continuous workday” rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee's principal activity or activities.” § 790.6(b). IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005) (“Alvarez”). The term “principal activity or activities” embraces all activities which are “an integral and indispensable part of the principal activities.” Alvarez, 546 U.S. at 21(“Alvarez”). An activity is integral and indispensable if it is an “intrinsic element” of the employee's principal activities, and one with which the employee cannot dispense if he or she is to perform his or her principal activities. See Integrity Staffing Solutions, Inc. v. Busk, __ U.S. __, 135 S.Ct. 513, 514 (2014), cited in Landry v. Swire Oilfield Servs., L.L.C., No. CIV 16-621 JB/LF, 2017 WL 1709695, at *24 (D.N.M. May 2, 2017)); Baker v. Barnard Const. Co., 146 F.3d 1214, 1216 (10th Cir. 1998) (holding that if an activity is “an integral and indispensable part of the principal activities for which covered workmen are employed, ” it constitutes a compensable principal activity rather than a non-compensable preliminary or postliminary task).

         B. Portal-to-Portal Act

         The FLSA was amended by the Portal-to-Portal Act to exclude normal home to work travel from the scope of paid time under the FLSA, as well for any activities that are merely “preliminary to or postliminary” to their principal activities at work. 29 U.S.C. § 254(a); 29 C.F.R. § 785.35. The Portal-to-Portal Act's amendment, however, did not change earlier descriptions of the term “work.” In Alvarez, the Supreme Court clarified that time spent after the beginning of the first principal activity, including time spent walking, is not affected by §4(a) of the Portal-to-Portal Act, 29 U.S.C. §254(a), and is therefore compensable. 546 U.S. at 28 (2005). In Steiner v. Mitchell, 350 U.S. 247, 254 (1956), the Supreme Court found that Congress passed the Portal-to-Portal Act still intending for an employee's activities to fall within the protection of the FLSA “if they are an integral part of and are essential to the principal activities of the employees.” Thus, activities performed either before or after the regular work shift are still compensable “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Id. at 256. (emphasis added). The Supreme Court further clarified this rule in Alvarez, explaining that any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” and is thus compensable under the FLSA. Alvarez, 126 S.Ct. at 525. Further, where an employee's activity “takes all of a few seconds and requires little or no concentration, ” then the activity is “properly considered not work at all.” See, e.g., Landry v. Swire Oilfield Servs., L.L.C., No. CIV 16-621 JB/LF, 2017 WL 1709695, at *23 (D.N.M. May 2, 2017) (citing Smith V Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006)).[1]

         Under the FLSA, then, a “workday” begins after the beginning of the first principal activity, and activities after that point are compensable and not affected by §4(a) of the Portal-to-Portal Act. In other words, any pre or post shift “principal activity” triggers coverage under the FLSA for other activities that occur after that point. This is why the determination of which (if any) of the activities at issue are considered “principal activities” under the FLSA is so critical. Any activity, even time spent walking, is excluded from the scope of the Portal-to-Portal Act and is compensable as long as the activity occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity. IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005). Thus, if any of the below activities are found to be compensable, that activity would trigger the “continuous workday.” See, e.g., Landry v. Swire Oilfield Servs., L.L.C., No. CIV 16-621 JB/LF, 2017 WL 1709695, at *23 (D.N.M. May 2, 2017) (if plaintiffs' first principal activity-loading their trucks with protective gear-occurred before traveling to the job site, then the plaintiffs' travel time constituted compensable work) (citing Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006)).

         C. “Rounding” Policy

         Plaintiffs also claim that they have lost time for which they should be compensated due to Defendant's “rounding” policy, which Plaintiffs claim is unlawful. “Rounding” is addressed in 29 CFR §785.48 as a lawful method for averaging start and stop work times where time clocks are used. The practice of “computing working time” by “rounding” is accepted and lawful “provided that the practice “averages out so that the employees are fully compensated for all the time they actually work” and so that “it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” §785.48(b).

         D. Summary Judgment

         Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Once that burden is met, the nonmoving party must put forth specific facts showing that there is a genuine issue of material fact for trial; he may not rest on mere allegations or denials in his own pleadings. A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248). When applying this standard, the court examines the record and makes all reasonable inferences in the light most favorable to the non-moving party. Id. The movant bears the initial burden of establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Cross v. The Home Depot, 390 F.3d 1283, 1284-85 (10th Cir. 2004). Summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting Fed.R.Civ.P. 56).

         Whether an activity is preliminary or postliminary to principal activities for purposes of §254(a)(2) of the Portal-to-Portal Act is a mixed question of law and fact because the precise nature of the employee's duties is a question of fact, while application of the FLSA to those duties is a question of law. Baker v. Barnard Const. Co., 146 F.3d 1214, 1216 (10th Cir. 1998). However, where there are undisputed facts as to whether a certain activity is a compensable principal activity or a non-compensable preliminary or postliminary task, the Court may appropriately grant summary judgment. Renfro v. City of Emporia, 948 F.2d 1529, 1536 (10th Cir. 1991) (granting summary judgment by relying on undisputed facts); cmp., e.g., Brubach v. City of Albuquerque, 893 F.Supp.2d 1216 (D.N.M., 2012) (issues existed as to whether city “employed” security guards for five-minute period prior to start of their shifts, summary judgment denied as to whether that time was compensable “work” within meaning of FLSA); see also Carter v. Panama Canal Co., 314 F.Supp. 386, 391 (D.C.D.C. 1970) (whether the activities were such an integral and indispensable part of the employee's principal activity as to be compensable is a question of fact); Dunning v. Q. O. Ordinance Corp., 233 F.2d 902, 903 (8th Cir. 1956) (question whether activities of powder line workers in changing clothes before and after work and in showering were such integral and indispensable part of principal activities so that they were compensable, was question of fact).


         Defendant contends that Plaintiffs are attempting to circumvent the Portal-to-Portal Act in trying to claim payment for activities on their way to and from their posts because compensable work begins and ends at an employee's post and that activities carried out on their way to and from an officer's post are not compensable. Defendant offers three grounds for summary judgment:

(1) Plaintiffs' walk time to/from post and the time spent on preliminary and postliminary activities is not compensable because an officer's workday begins after pass-down is given by the previous shift, and ends when pass-down begins, on the arrival of the next shift;
(2) Any discrepancy between what Plaintiffs are paid and their scheduled start/end times (the shift times for which MTC pays them) is de minimis; and
(3) Plaintiffs' claims are barred due to their failure to use MTC's time adjustment process, which is a system for correcting compensation errors.

         I. MTC's Alleged Unlawful “Rounding Practice”

         As a preliminary matter, the Court finds that Plaintiffs' theory of unlawful “rounding” can be dispensed with in order to clarify the real issues in this case. Plaintiffs contend that Defendant's unfair rounding practices violate the FLSA and the NMMWA and further claim that “rounding” violations are not subject to a de minimis defense as a matter of law because MTC uses an up-to-the minute payroll system which precisely records work start-and stop-times.

         MTC contends that this case is not about “rounding” as that term of art is used in the regulations and case law. MTC describes its practice as a “ten-minute adjustment window, ” (see Doc. 160 at 2) which is used because the officers' eight-hour shifts begin and end at their posts. Also, because the activities that occur within 10 minutes of the start/end times of scheduled shifts are not compensable, any so-called “rounding” or averaging affects largely noncompensable activities. Doc. 160 at 13, n.3.

         MTC explains that it is impractical to have time clocks at each of the 40 prison posts, and so the detention officers use a time clock that is a few steps beyond the metal detector. The time clock records the actual time that officers swipe in and out, but because the time clock is about ten minutes away from the various posts, MTC pays its officers based on their shift schedule-as long as officers clock in or out no more than ten minutes on either side of the scheduled start or stop time. So, for example, an officer scheduled for the 6:00 a.m. to 2:00 p.m. shift who clocks in at 5:58 a.m. and out at 2:05 p.m. will be paid for 8 hours, as will an officer who clocks in at 6:10 a.m. and out at 1:59 p.m. By contrast, an officer on the same schedule who clocks in at 6:12 a.m. and out at 2:11 p.m. will be paid for actual clock time; and an officer who clocks in at 6:02 a.m. but out at 2:11 p.m. will be paid as if the officer worked from 6:00 a.m. to 2:11 p.m. See Doc. 160 at 13.

         Another way of looking at the adjustment window is that MTC pays detention officers for the full eight-hour shift unless the officer arrives more than ten minutes before the shift begins or leaves more than ten minutes after the shift ends. Under this practice, an officer is paid for the total eight-hour shift-whether the officer arrives at post a few minutes early (which means an officer is not paid for those few minutes) or whether he leaves a few minutes early (in which case the officer is paid for time he not working).

         The practice of “rounding” cannot be reconciled with MTC's ten-minute adjustment window; it simply does not apply. “Rounding” is used when calculating increments of work time, so that actual work time is averaged down or up, depending on the incremental basis used. In other words, under a true rounding system, employees are working immediately upon clocking in. Here, clocking in does not define “work” time; if it did, this lawsuit would have been easily resolved. Instead, MTC applies its ten-minute adjustment window only to clock ins/outs within 10 minutes of scheduled “work” shifts. This adjustment therefore does not reduce the total number of hours an officer has been scheduled to work on his eight-hour shift unless he is more than ten minutes late to arrive or more than ten minutes early to leave.

         Moreover, under the regulations addressing the recording of working time, early or late clock punching “may be disregarded” where time clocks are used. 29 C.F.R. §785.48(a). The law recognizes that “[m]inor differences between the clock records and actual hours worked cannot ordinarily be avoided but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked.” Id. MTC's time adjustment policy does not lend itself to major discrepancies because it does not affect compensation start/stop times for scheduled eight-hour shifts, which would be allowed under §785.48(b). If an officer starts actual work early or leaves late (by less than ten minutes), MTC's time adjustment practice may benefit Defendant but it does not reduce compensation for the scheduled eight-hour shift.

         The issue in this case is whether an officer should receive additional compensation for certain activities performed to and from the post, not whether any officer should be paid for a full eight-hour shift, and so Plaintiffs' theory of “rounding” practice violations is incongruous with the non-compensation allegations being made in this case. Therefore, the Court grants Defendant summary judgment on its position that MTC's time adjustment policy does not constitute “rounding” as that concept is used in wage and hour law. Furthermore, the Court will not consider any of Plaintiffs' “rounding” argument in subsequent discussions on the issues raised in this motion.

         II. Whether Activities Are Not Compensable and Therefore Excluded Under the Portal-to-Portal A[2]

         Defendant contends that Plaintiffs' walk time to/from post and the time spent on preliminary and postliminary activities is not compensable because compensable activities begin and end at Plaintiffs' posts after pass-down. The question in this section is whether any of the challenged activities during that time is compensable as principle activities. Under the FLSA and the relevant case law, pre-and post- work is compensable as a principal activity only if (1)

         Plaintiffs were “employed to perform” the work; and (2) the work is integral and indispensable to the principal activity. Busk, 135 S.Ct. at 519.

         The Court has reviewed the considerable amount of materials submitted in connection with this motion, including Plaintiffs' numerous additional facts set forth in their response brief. As a result of the vast amount of material and information presented to the Court in Defendant's facts and Plaintiffs' responses to those facts, none of the evidence cited by Plaintiffs in their “additional facts” section provides the Court with anything new, much less evidence that creates a factual dispute. For example, some of these additional facts are not inconsistent with Defendant's facts on the same issues. See Pltffs' Add'l Facts L, M, O, Z. Other facts can best be described as legal argument as to whether an activity is compensable. See Pltffs' Add'l Facts H-J. Still other facts focus on Plaintiffs' arguments on what they call MTC's illegal “rounding policy, ” which the Court rejects as an issue in this case. See Pltffs' Add'l Facts E, XX-ZZ. The Court's discussion below therefore focuses on the information and evidence presented through Defendant's facts and Plaintiffs' responses.

         A. Metal Detector Clearance

         Defendant contends that walking through the metal detector, which takes from three to ten or eleven minutes, is not compensable. Deft's Facts 6-8. Plaintiffs claim there is a genuine factual dispute as to the amount of time to clear the metal detector, offering numerous declarations by Plaintiffs to counter the deposition testimony presented by Defendant, but any time differences turn out to be not only immaterial but ultimately in MTC's favor. The declarations presented by Plaintiffs remain within the three to eleven minute window stated by Defendant.

         Immaterial time differences aside, the bigger question is whether clearing the metal detector can be considered compensable activity because it is integral and indispensable to the officers' principal work activity. Defendant points to the United States Supreme Court's decision in Busk, 135 S.Ct. at 514, which held that time spent undergoing and waiting to undergo security screening is not compensable under the FLSA. See Alvarez, 546 U.S. at 40 (neither waiting nor walking was a principal activity). Defendant contends that Plaintiffs can perform their duties without having to go through the security screenings. In Busk, the security screenings were not “integral and indispensable” to employees in retrieving products from warehouse shelves or packaging them for shipment. Busk, 135 S.Ct. at 519. The “integral and indispensable” test is tied to the productive work that the employee is employed to perform.” Id. (emphasis in original). Here, the screenings are not tied to the work of detention officers in the security of prisons, and there are no inmates living where the security screenings take place.

         Plaintiffs contend that searching for contraband is part of their essential work function, and so mandatory clearance through the metal detector is integral and indispensable to their principal work activity and thus compensable. However, in clearing the metal detector, the officers are not searching for contraband; rather they themselves are being searched for contraband-and being searched is not a compensable activity. Plaintiffs attempt to distinguish Busk by noting that the searches in that case took place after the workday was over as a theft prevention measure. Plaintiffs conveniently ignore the Supreme Court's reasoning in Busk, which expressly found no distinction between pre-shift searches conducted for safety of employees and those conducted for the purpose of preventing theft post-shift, and that “neither were compensable under the Portal-to-Portal Act.” 135 S.Ct. at 519. Also, the fact that the security clearances may be for the employer's benefit is not dispositive. The Supreme Court noted that a “test that turns on whether the activity is for the benefit of the employer is similarly overbroad.” Id.

         Because the controlling law establishes that a preliminary security measure such as walking through a metal detector is not integral and indispensable to the officers' principal activity, Defendant is entitled to summary judgment on this ...

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