Preparatory and concluding activities

Scope

Employees must be paid for all hours worked, including certain preparatory and concluding activities.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Employees must be paid for all working time, but the Fair Labor Standards Act (FLSA) does not specifically define “work.” However, the regulations do describe activities that count as “hours worked” including travel time, meeting time, and certain preparatory and concluding activities (like donning personal protective equipment or otherwise getting ready for the job).

Generally, activities performed before or after the employee engages in regular job tasks must be counted as work if they are “principal activities.” This term is not specifically defined either, but the regulations do give examples as follows:

1. A lathe operator will frequently, at the start of his workday, oil, grease, or clean his machine, or install a new cutting tool. These are principal activities — they are necessary for the job and they benefit the employer, so the employee must be paid for time spent performing these tasks.
2. A garment worker in a textile mill must report 30 minutes before other employees to distribute clothing at workstations and prepare the machines for operation by other employees. These are principal activities, and the employee must be paid for the time.
3. If an employee in a chemical plant cannot perform his principal activities without putting on certain clothes, then changing clothes at the beginning and end of the workday is a principal activity.

For the employer, not the employee. If changing clothes is merely a convenience to the employee and is not directly related to his principal activities, it is not a principal activity. For example, if a carpenter chooses to change clothing to keep street clothes from getting dirty, that’s for the carpenter’s own benefit, not for the employer’s benefit. The time spent changing clothes (for the employee’s own benefit) would not count as working time.

Two cases decided by the U.S. Supreme Court further illustrate the activities which are considered an integral part of the employees’ jobs:

• In one case, employees changed their clothes and took showers in a battery plant where the manufacturing process involved the extensive use of caustic and toxic materials.
• In another, knifemen in a meatpacking plant sharpened their knives before and after their scheduled workday.

In both cases, the Supreme Court held that these activities are an integral and indispensable part of the employees’ principal activities.

In short, activities must be counted as hours worked if they are indispensable to the performance of the employee’s work or are required by law or by the rules of the employer (such as OSHA regulations that require personal protective equipment). If preparatory and concluding activities are necessary for the job, and are performed for the benefit of the employer, they are regarded as “work” and are compensable under the FLSA.

Excluded by custom or contract. The FLSA contains a provision which allows employers to exclude activities such as changing clothes. Specifically, this provision says:

“...there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”

Note that time spent in such activities can be excluded only if those activities are not compensable under federal law. If the FLSA requires paying for time spent in certain activities, employers must pay for that time. Employers cannot refuse to pay for “work” activities simply by creating an agreement that such time won’t be paid. Similarly, employees cannot agree to forgo wages for compensable activities, and courts have found such agreement to be invalid. The Wage and Hour Division has also stated that employees cannot choose to “decline” the protections of the FLSA.

Where time is excluded from “hours worked” by custom or contract, the agreement should primarily serve to provide clarification about when the workday begins. As an example, a company might clarify that employees who change into coveralls before the workday are doing so for their own benefit, and will not be paid for this time. However, if employees must put on personal protective equipment at the beginning of the day, this would be compensable working time, and it could not be excluded by custom or contract.