Washington Employers Are Vulnerable to Pay Claims for Pre- and Post-Shift Activities

Employers around the country have found themselves the target of lawsuits by hourly or non-exempt employees claiming that they are owed wages for “work” performed before or after their regular work shift. Employers in Washington state are particularly vulnerable to such lawsuits because Washington law is not identical to the federal Fair Labor Standards Act (FLSA), making the law more confusing and compliance more difficult. In addition, Washington courts often rule in favor of employees and generously award damages.

Washington employers must comply with both federal and state law, and the lack of consistent, bright-line rules often results in uncertainty and frustration. To ensure compliance, Washington employers must understand the overarching issues and analyze their individual situations in both federal and state contexts.

Employers understand that, with rare exception, once an hourly or non-exempt employee starts his or her shift (“clocks in”) the employee is entitled to be paid for his or her regular work shift activity until the employee finishes the shift (“clocks out”).

Most employers recognize that if they require an hourly or non-exempt employee to come in early or stay late, they are responsible for paying the employee for that time even though it is outside the normal work shift hours. But what some employers overlook is the need, depending on the circumstances, to compensate the employee for certain activities before or after the work shift, even though it is not the principal activity for which he or she is engaged.

Among these potentially compensable activities are commuting, traveling, changing clothes, laundering work clothing, checking voicemails or emails, calling in for schedule information, washing or showering, waiting to enter or leave a facility, booting up an electronic device, and grabbing supplies and equipment.

Federal regulations call these “preliminary” and “postliminary” activities and state that they do not have to be paid for, unless the employee can show that the preliminary or postliminary activities are integral and indispensable to the principal activity and thus qualify as principal activities themselves.

In the infamous Alverez v. IBP decision, which involved a Washington employer and went all the way to the U.S. Supreme Court, the lower courts concluded that certain clothes-changing activity (donning and doffing of safety gear) was compensable time; however, time spent waiting in line to receive the gear was held to be noncompensable.

To confuse matters even more, Washington’s regulations are different from the federal FLSA. Washington analyzes pre- and post-shift activities based on whether they are “hours worked,” which is defined as “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed workplace.” Thus, Washington courts are left to decide on a case-by-case basis what it means to be “on duty” and whether a particular location is “the employer’s premises” or “a prescribed workplace.”

The above issues must be analyzed in light of each employer’s individual operation under both federal and state law. Fortunately, this can often be done fairly quickly.

To assist employers, the employment lawyers at Davis Wright Tremaine have published written material, such as this advisory, have presented seminars focusing on the topic of pre- and post-shift activities, and are available for individual consultation.