Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).
District court dumps all claims. Although two former county employees (a jail detention officer and the 911 dispatcher) originally filed suit claiming that the county required them to attend pre- and post-shift briefings (plus perform daily pre-shift tasks) but did not compensate them and also failed to pay for “on call” time, the district court granted the county summary judgment on all these FLSA claims. And for the most part, the Tenth Circuit agreed that only the pre-shift briefings for the detention officer qualified as compensable work; the women failed to present sufficient evidence as to how much unpaid overtime they worked; and neither woman established that she spent her on-call time predominantly for the county’s benefit.
Dispatcher’s pre-shift briefing—written or oral. As for the dispatcher’s claim that the county’s written policy required her to be at work five minutes before her shift began to be briefed by the outgoing dispatcher, the district court had found that the pre-shift briefing was not integral and indispensable to the principal activity for which she was hired because she could get the same information about what was happening county-wide for first responders at the start of her shift by reading the dispatcher desk notes—instead of being briefed by the outgoing dispatcher. But the appeals court pointed out that this too would require pre-shift time from the dispatcher.
Integral and indispensable. “No one argues that it is not integral and indispensable for the incoming dispatcher to obtain this information in some manner before beginning her shift, the Tenth Circuit pointed out, finding sufficient evidence for a jury to find that the county had to pay her for the five extra minutes it required her to be at her job, pre-shift, to one way or another receive information that is integral and indispensable to her principal activity of being a 911 dispatcher.
Ascertainable, fixed, and regular five minutes. And the dispatcher produced sufficient evidence of how much overtime she was owed: five minutes each shift, per the county’s written policy. This five minutes each shift could not be disregarded as de minimis because the regulation allowing an employer to disregard insubstantial and inconsequential amounts of time (29 C.F.R. § 785.47) “applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration.” That regulation further provides that “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”
In the Tenth Circuit’s view, the county, by its written policy, required dispatchers to be at work five minutes before every shift. That is a “fixed or regular working time,” and a “practically ascertainable period of time” the dispatcher was “regularly required to spend on duties.” As a result, the appeals court reversed summary judgment on the dispatcher’s pre-shift overtime claim.
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