Security Screening for Detention Officers Is Compensable Time

By Jennifer L. Gokenbach April 21, 2020
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detention officer

​Compensable work time under the Fair Labor Standards Act (FLSA) for detention officers includes the time spent undergoing security screening and checking keys and equipment in and out, among other pre- and post-shift activities, according to the 10th U.S. Circuit Court of Appeals.

Management & Training Corporation (MTC) employs detention officers at Otero County Prison near Chaparral, N.M. The officers work eight-hour shifts, five days a week, and are responsible for the custody of detainees and safety at the prison. Among other duties, the officers search for contraband, provide security, supervise detainees and prepare reports. Each officer works one of three shifts, beginning at 6 a.m., 2 p.m. or 10 p.m., and is assigned to one of 30 posts within the prison.

Before an officer arrives at an assigned post, the officer must undergo a security screening, receive a pre-shift briefing with a supervisor, check out keys and equipment, walk to a post, and receive a passdown briefing from the departing officer. Then, when the officer leaves a post, the officer must conduct the same activities in reverse, except for the security screening.

MTC requires the officers to use a time clock to record their clock-in times after undergoing the security screening and clock-out times after returning their keys and equipment. However, rather than paying the officers based on the precise clock-in and clock-out times, MTC instead pays the officers based generally on their scheduled eight-hour shifts, with a 10-minute adjustment rule.

The 10-minute adjustment rule means that MTC will pay an officer based on the time clock rather than on his or her scheduled shift if an officer clocks in or out more than 10 minutes before or after the shift start or end time.

A group of 122 detention officers sued MTC, claiming that time spent during the security screening and other activities before arriving at a post and after leaving a post was compensable and that MTC had violated the FLSA by not paying them for that time. The officers also claimed that MTC's 10-minute adjustment rule rounded down their work time, resulting in the underpayment of wages.

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MTC denied any liability, claiming the security screening, briefings, keys and equipment check in and check out, and walking to and from a post are insubstantial, or de minimis, preliminary and postliminary noncompensable activities and that it did not impermissibly round down the officers' work time.

The trial court ruled for MTC and the 10th Circuit reversed. An employee must be paid for all time worked, including all activities that are integral and indispensable to the officers' principal activities, the appeals court stated. Under the FLSA, the integral-and-indispensable inquiry does not turn on whether the employer requires the activity or whether the activity benefits the employer; rather, the question is whether the activity is tied to the productive work that the employee is employed to perform.

The security screening, which lasts between three to 11 minutes, is required by MTC to ensure prison safety and to prevent officers from bringing contraband such as weapons or cell phones into the prison, the appeals court observed. Keeping weapons and other contraband out of the prison is "necessarily 'tied to' the officers' work of providing prison security and searching for contraband," the court said.

In addition, because the screening cannot be eliminated without impairing the officers' ability to complete their work of providing security for the prison, it is integral and indispensable to the officers' principal duties. Because the security screening began the officers' workday, all the other pre-shift activities that occurred after—briefings, picking up keys and equipment, and walking to posts—are necessarily compensable time.

Similarly, returning the keys and equipment are indispensable to the officers' ability to perform their principal work of inmate custody and prison security. Thus, all of the post-shift activities that occur before the last principal activity of returning keys and equipment—including the passdown briefing and walking back from a post—are also compensable.

The 10th Circuit also found that the amount of time spent by the officers on the pre- and post-shift activities exceeded eight minutes per shift and is not de minimis. Moreover, MTC's 10-minute adjustment rule was not neutrally applied, as it worked in MTC's favor 94 percent of the time by rounding down the officers' time.

Aguilar v. Management & Training Corp., 10th Cir., No. 17-2198 (Feb. 4, 2020).

Professional Pointer: To determine whether a preliminary and/or postliminary activity is compensable, an employer must consider if the activity is an "integral and indispensable" part of the employee's principal activity. In other words, is the activity tied directly to the productive work that an employee is employed to perform? Even if the activity provides a benefit to the employer or is required by the employer, it is not necessarily compensable unless it cannot be eliminated without impairing an employee's ability to perform his or her work safely and effectively.

Jennifer L. Gokenbach is an attorney with The Workplace Counsel, the Worklaw® Network member firm in Denver.

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