Detention officers win overtime pay appeal

A large group of detention officers has won an appeal of a decision in an overtime pay lawsuit.  In Aguilar v. Management & Training, No. 17-2198 (10th Cir. 2020), one-hundred twenty-two officers who work or worked at Otero County Prison near Chaparral, New Mexico, alleged that their employer, Management & Training Corporation (MTC), failed to pay them for certain activities that they engage in before they arrive at, when they arrive at, and after they leave their posts within the prison. The officers filed suit under the New Mexico Minimum Wage Act and the Fair Labor Standards Act.  

According to the officers, when they arrive at the prison, they initially undergo a security screening. Then—in what the parties characterize as a “pre[]shift briefing”—some officers receive post assignments from a supervisor. During the preshift briefing, officers sometimes receive paperwork or additional information about their post for that day. Next, some officers obtain the keys they need for the day’s post from a fingerprint-activated box. And some or most officers collect any equipment they need for the day, such as handcuffs, a radio, or pepper spray, from the prison’s inventory-control system. The officers then walk to their posts, where they receive a “pass[]down briefing” from the officer leaving the post. After working their shifts, departing officers complete several of the same tasks in reverse: they provide a passdown briefing to an incoming officer, walk back from their post, and return their keys and equipment to the fingerprint-activated box and the prison’s inventory-control system, respectively.

MTC requires the officers to use a time clock to precisely record their arrival and departure times; officers clock in after undergoing the security screening and clock out after returning their keys and equipment. Nevertheless, MTC generally pays the officers based on their scheduled eight-hour shifts rather than on the precise times at which they clock in and out. The one exception to this policy is the ten-minute adjustment rule: if an officer clocks in or out more than ten minutes before or after his or her shift start or end time, MTC will pay the officer based on the time clock rather than on his or her scheduled shift. That is, if an officer clocks in for a 6 a.m. shift at 5:58 a.m. and clocks out at 2:09 p.m., MTC will pay that officer for the eight-hour shift (i.e., from 6:00 a.m. to 2:00 p.m.); but if an officer clocks in for that same shift at 5:45 a.m. and clocks out at 1:49 p.m., MTC will pay that officer based on the time clock (i.e., for eight hours and four minutes). This rule applies on either end of the shift time, so that if an officer clocks in at 5:49 a.m. and clocks out at 1:56 p.m., MTC will pay that officer for time worked from 5:49 a.m., the clock-in time, to 2 p.m., the shift-end time (i.e., for eight hours and 11 minutes). In addition, MTC provides officers with time-adjustment forms, which the officers can complete to request payment if they devote time out-side of their scheduled shift to compensable work.

The officers contend that MTC’s compensation system deprives them of overtime pay in two ways. First, they allege that because MTC typically pays them based on shift time rather than clock time, it fails to pay them for the time they devote to undergoing the security screening, receiving the preshift briefing, checking keys and equipment in and out, walking to and from post, and conducting passdown briefings. Second, the officers allege that MTC’s ten-minute adjustment rule routinely rounds down their work time, resulting in systematic underpayment.

Following discovery, MTC moved for summary judgment. It argued that officers do not perform compensable work under the FLSA when they undergo the security screening, receive the preshift briefing, check keys and equipment in and out, walk to and from post, and conduct passdown briefings. Further, MTC alternatively argued that if any of that time was compensable, it was de minimis and thus not recoverable. MTC additionally (a) insisted that it did not impermissibly round off the officers’ working time and (b) raised an estoppel defense, arguing that it need not pay the officers because it did not know the officers were engaging in these activities.

The district court ruled that of the activities the officers described, only the passdown briefing was integral and indispensable to the officers’ principal activities and therefore compensable. But the district court ultimately concluded the officers were not entitled to compensation for the time devoted to conducting passdown briefings because that time was de minimis. It further rejected the officers’ rounding claim. As such, the district court granted MTC summary judgment on all of the officers’ claims (without reaching MTC’s estoppel defense). However, the 10th Circuit Court of Appeals reversed.  

The appeals court found that security screening was indispensable to the officers’ principal activities, and that it was an intrinsic element of the officers’ security work.  Thus, the court found that the district court erred when finding this work was not compensable under the FLSA and NMMWA.  The appellate court also found that postliminary work, such as checking keys and equipment in at the end of the day was integral and indispensable and thus compensable.  

The 10th Circuit next assessed the district court’s finding that the complained-of time was de minimus and thus not compensable.  It found that the fact that MTC records all of th officers’ time and could reasonably estimate the time complained-of by the plaintiffs weighed in the officers’ favor.  The court further found that at least eight minutes per shift was spent on pre-and post-shift activities.  The court found that the aggregate size of the officers’ uncompensated time claim – $355,478, was significant enough that it weighted in favor of finding it not to be de minimus.  It also found that the fact that these activities were performed “during most shifts” by these officers weighed in the officers’ favor.  As such, the 10th Circuit found that the pre- and postliminary activities were not de minimus and were compensable.

Lastly, on the pre- and post-shift time issue, MTC argued that even if the time was compensable, it was not liable to pay it because it did not know the officers were working outside their scheduled shifts.  The Court rejected this argument:

MTC requires both the security screening and the passdown briefing. It cannot simultaneously require an activity and claim to be unaware that employees are engaging in that activity. Further, it is undisputed that MTC often has supervisors conduct the preshift briefing; knows the officers check out keys and equipment because the officers use the inventory-control procedures; and knows they walk to and from their posts because they show up for work.

As such, the Court rejected MTC’s contention that it did not “suffer or permit” the officers’ pre- and post-shift work.  It reversed and remanded the district court’s decision.  

This case provides an excellent illustration of how pre- and post-shift activities can violate federal and state overtime laws.  If you perform work before you clock in or after you clock out, you should confer with an experienced overtime attorney to learn of your legal rights. Josh Borsellino represents workers suing for overtime pay and is willing to evaluate potential claims of any detention officers who work or have worked for MTC within the past three years.  Call Josh at 817.908.9861 or email him by clicking this link for a free evaluation of your overtime case.  


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