Alexander v. United States

In the United States Court of Federal Claims

No. 21-1143C

Filed: October 30, 2021

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CORINTHIA J. ALEXANDER, et al., *

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Plaintiffs, *

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v.

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UNITED STATES, *

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Defendant. *

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Molly A. Elkin, Law Offices of McGillivary Steele Elkin LLP, Washington, D.C., for

plaintiffs. With her was Sarah M. Block, Law Offices of McGillivary Steele Elkin LLP,

Washington, D.C.

Bret R. Vallacher, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With him were

Reginald T. Blades Jr., Assistant Director, Commercial Litigation Branch, Martin F.

Hockey Jr., Acting Director, Commercial Litigation Branch, and Brian M. Boynton,

Acting Assistant Attorney General, Civil Division. Ted Booth, Assistant General Counsel,

Federal Bureau of Prisons, of counsel.

OPINION

HORN, J.

The above captioned case was filed by 334 current or former employees at the

Federal Correction Complex Beaumont (the Beaumont Institution) located in Beaumont,

Texas. In plaintiffs’ complaint, they allege they are bringing this action on behalf of

themselves and other employees similarly situated for back pay, and other relief pursuant

to 29 U.S.C. § 216(b) (2018), 29 U.S.C. § 1331 (2018), 28 U.S.C. § 1346(a)(2) (2018),

28 U.S.C. § 1491 (2018), 5 U.S.C. § 5596 (2018), and the overtime provisions of the Fair

Labor Standards Act (FLSA), 29 U.S.C. § 207 (2018). In the United States Court of

Federal Claims, plaintiffs filed an initial complaint on March 31, 2021 and then, on April

20, 2021, an amended complaint. After defendant filed a motion to dismiss on June 15,

2021, plaintiffs filed a second amended complaint on June 23, 2021. The second

amended complaint alleges, “[p]laintiffs and other employees similarly situated have been

entitled to FLSA overtime pay for all hours of work in excess of eight (8) in a day and/or

forty (40) in a workweek.” Plaintiffs claim “[d]efendant has suffered or permitted Plaintiffs

to work at least 15-30 minutes each shift, and sometimes more, before and after their

scheduled shift times without compensating Plaintiffs for this work time.” Plaintiffs assert

that in addition to their regular, compensated work time, they were each required to go

through security screening, collect and don their belts and other required equipment, flip

their accountability chit,1 clear the sally port,2 perform an equipment and information

exchange, and walk to and from their assigned duty posts prior to and after their eight-

hour shifts. As relief, plaintiffs request the court:

(a) Enter judgment declaring that Defendant has willfully and wrongfully

violated its statutory obligations, and deprived each Plaintiff of their rights

under the FLSA and Title 5;

(b) Award each Plaintiff monetary damages, including backpay and

liquidated damages equal to their unpaid compensation, plus interest;

(c) Award Plaintiffs their reasonable attorneys’ fees to be paid by Defendant,

and the costs and disbursements of this action; and

(d) Grant such other relief as may be just and proper.

(capitalization in original).

According to plaintiffs’ second amended complaint, the Beaumont Institution is a

federal correctional complex with three component facilities: FCI Beaumont Low, a low

security correctional facility; FCI Beaumont Medium, a medium security correctional

facility; and a United States Penitentiary Beaumont, a high security penitentiary. The three

facilities in this lawsuit house over 4,300 inmates, including those who are violent

offenders.

Also, according to plaintiffs’ second amended complaint, “[t]he Institution . . . is

staffed 24 hours per day, 365 days per year, by correctional officers, including Plaintiffs.

The correctional officers’ principal activity is maintaining the safety and security of the

Institution, inmates, and staff.” According to the second amended complaint, most of the

posts to which plaintiffs are assigned are staffed for 16 or 24 hours per day. Some 24-

hour posts are staffed with “three 8-hour paid shifts daily, often referred to as Morning

1 Chits are typically small pieces of plastic or metal that are commonly used in penal

institutions to identify employees either by name or number. See Aguilar v. Mgt. & Training

Corp., 948 F.3d 1270, 1282 (10th Cir. 2020) (defining chits as “individualized metal coins

. . . that record who possesses the equipment.”); Carlsen v. United States, 72 Fed. Cl.

782, 789 n.20 (2006), aff’d, 521 F.3d 1371 (Fed. Cir.), as corrected on reh’g (Fed. Cir.

2008).

2 Sally ports are typically comprised of “a set of double electronically-controlled doors . .

. . An officer in a control booth controls entry and exit to the sally port. Only one door to

the sally port can be open at a time.” Bishop v. United States, 74 Fed. Cl. 144, 147 (2006),

aff’d sub nom. Carlsen v. United States, 521 F.3d 1371 (Fed. Cir.), as corrected on reh’g

(Fed. Cir. 2008).

2

Watch, Day Watch and Evening Watch.” Further, according to plaintiffs, “[b]ecause the

Institution has implemented a Compressed Work Schedule option, some 24-hour Housing

Unit posts are staffed with two shifts of 12 hours, instead of three shifts of 8 hours.” When

there is a 24-hour post, for both 12-hour and 8-hour shifts, there is no paid overlap of

guards. By contrast, “there has been a 15-minute scheduled, paid overlap between the

two 8 hour shifts on 16-hour posts in the Institution since at least 2014.”

Plaintiffs allege that before walking to their assigned posts at any of the three

component sections in the Beaumont Institution, plaintiffs must clear the staff security

screening in order to “perform their principal activity of maintaining safety and security by

assuring that no contraband enters the Institution.” On arrival, “[p]laintiffs assigned to a

24-hour post at any of the three facilities within Institution begin their unpaid pre-shift work

when they start the process of clearing the staff screening site in the front lobby” of their

assigned component section within the Beaumont Institution. After the security screening,

plaintiffs “collect and don their duty belts and other required equipment after clearing the

staff screening site, including required metal chains and chits, which are essential to hold

keys and access equipment.” Plaintiffs collect their equipment after clearing the screening

“because Plaintiffs cannot wear their duty belts and metal chains as they walk through

the upright metal detector without sounding the alarm.”

Next, according to plaintiffs, they are visually identified by the Control Center officer

in whichever facility within the Beaumont Institution they are assigned. This officer allows

plaintiffs to enter “into a sally port, where they are required to flip their accountability chit

signifying that they are on duty and inside the secured confines of the Institution.” Also

according to the second amended complaint, after clearing the sally port, plaintiffs walk

to their 24-hour posts inside the secure confines of the Institution. While

walking to their posts, Plaintiffs supervise and monitor inmates, observe and

correct inmate behavior, respond to inmate questions, check for security

breaches in the perimeter fence and elsewhere inside the Institution, check

for contraband, run to locations where body alarms sound, and respond to

other emergencies as they arise.

Once they arrive at their assigned posts, plaintiffs “exchange equipment—including but

not limited to radios, oleoresin capsicum (‘OC’) spray and keys—with the outgoing

correctional officer assigned to that post. Plaintiffs also perform a vital (but unpaid)

information exchange with the outgoing correctional officer about any significant security

events that occurred the previous shift.” Plaintiffs claim that their pre-shift preparations

should be compensable time. After performing their paid shift, plaintiffs walk “from their

posts to exit the secured perimeter” doing an uncompensated post-shift activity, during

which they

are required to, and do, respond to emergencies, including violent fights

between inmates, within the Institution on unpaid time when such

emergencies occur while they are walking to their posts prior to their shifts,

or while they are walking from their posts back to the Control Center after

their shifts. Failure to respond to an emergency results in discipline up to

and including termination.

3

Plaintiffs claim all these pre and post-shift activities also should be compensated.

Plaintiffs allege “[d]efendant has suffered or permitted Plaintiffs to work at least 15-

30 minutes each shift, and sometimes more, before and after their scheduled shift times

without compensating Plaintiffs for this work time.” Plaintiffs allege that the pre- and post-

shift activities previously described are work activities as specified by the FLSA, which

entitle plaintiffs “to overtime compensation at a rate of not less than one and one-half

times their regular rate of pay for all the hours or work in excess or 8 hours in a work day

and/or in excess of 40 in a workweek.” As indicated above, plaintiffs allege, “[p]ursuant to

29 U.S.C. § 216(b), Plaintiffs are entitled to recover backpay and liquidated damages in

an amount equal to their backpay for Defendant’s failure to pay overtime compensation

in compliance with the FLSA.” Additionally, plaintiffs argue, “[p]ursuant to the Back Pay

Act, 5 U.S.C. § 5596, Plaintiffs are entitled to recover interest on their backpay damages

for Defendant’s failure to pay them overtime compensation.” Moreover, plaintiffs argue

that they “are entitled to recover attorneys’ fees and costs under 29 U.S.C. § 216(b), the

Back Pay Act, 5 U.S.C. § 5596, as well as other applicable laws and regulations.”

Defendant responded to plaintiffs’ amended complaint by filing a motion to dismiss

and asserting that plaintiffs have failed to state a claim because

plaintiffs have not plausibly alleged that any of these preliminary and

postliminary activities are both “integral and indispensable” to the work that

they are “employed to perform,” Integrity Staffing Sols., Inc. v. Busk, 574

U.S. 27, 32–33 (2014) (citing 29 U.S.C. § 254(a)), and exceed the 10-

minute de minimis threshold, Carlsen v. United States, 72 Fed. Cl. 782, 798

(2006) (“the agency is not obligated to pay overtime when this work takes

ten minutes or less”), aff’d, 521 F.3d 1371 (Fed. Cir. 2008), as corrected on

reh’g (Apr. 29, 2008).

Defendant contends that plaintiffs’ alleged principal activity of “‘maintaining the safety and

security of the Institution, inmates, and staff’” are “‘conclusory statements of law and fact,’”

which “‘must be supported by factual allegations.’’” (quoting Shell Oil Col. v. United

States, 148 Fed. Cl. 781, 788 (2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

Moreover, defendant asserts that plaintiffs’ allegations fail “to establish a ‘principal activity’

as a matter of law because ‘safety and security’ are not specific activities—much less

‘principal activities,’ as required.” In its motion to dismiss, defendant states that the court

should analyze whether each of the plaintiffs’ claimed “pre- and post-shift activities is

necessary to the principal activity plaintiffs are paid to do, i.e., supervising inmates and

addressing any issues they see.” (emphasis in original).

DISCUSSION

Regarding defendant’s fully briefed motion to dismiss for failure to state a claim,

pursuant to Rule 12(b)(6) (2021) of the Rules of the United States Court of Federal Claims

(RCFC), when examining what must be pled in order to state a claim, a plaintiff need only

state in the complaint “a short and plain statement of the claim showing that the pleader

is entitled to relief.” RCFC 8(a)(2) (2021); see also Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The United States Supreme Court has stated:

4

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47

(1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d

247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of

his “entitle[ment] to relief” requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do, see

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts

“are not bound to accept as true a legal conclusion couched as a factual

allegation”). Factual allegations must be enough to raise a right to relief

above the speculative level, see 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright &

Miller) (“[T]he pleading must contain something more . . . than . . . a

statement of facts that merely creates a suspicion [of] a legally cognizable

right of action”), on the assumption that all the allegations in the complaint

are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327

(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes,

416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it

appears “that a recovery is very remote and unlikely”) . . . . [W]e do not

require heightened fact pleading of specifics, but only enough facts to state

a claim to relief that is plausible on its face.

Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56, 570 (footnote and other citations omitted;

omissions in original); see also Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. at 555–57, 570); First Mortg. Corp. v. United States, 961 F.3d 1331,

1339 (Fed. Cir. 2020); Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed.

Cir. 2019); Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016); A&D Auto

Sales, Inc. v. United States, 748 F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United

States, 739 F.3d 1324, 1330 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014);

Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged

‘must be enough to raise a right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).’” (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. at 557)); Totes-Isotoner Corp. v. United States, 594 F.3d

1346, 1354-55 (Fed. Cir.), cert. denied, 562 U.S. 830 (2010); Bank of Guam v. United

States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid dismissal for failure to state a

claim, the complaint must allege facts ‘plausibly suggesting (not merely consistent with)’

a showing of entitlement to relief.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)),

reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010);

Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must

plead factual allegations that support a facially ‘plausible’ claim to relief in order to avoid

dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at

570)); Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual allegations

must be enough to raise a right to relief above the speculative level. This does not require

the plaintiff to set out in detail the facts upon which the claim is based, but enough facts

to state a claim to relief that is plausible on its face.” (citing Bell Atl. Corp. v. Twombly,

5

550 U.S. at 555, 570)), reh’g denied (Fed. Cir.), cert. denied, 557 U.S. 937 (2009);

Christen v. United States, 133 Fed. Cl. 226, 229 (2017); Christian v. United States, 131

Fed. Cl. 134, 144 (2017); Vargas v. United States, 114 Fed. Cl. 226, 232 (2014);

Fredericksburg Non-Profit Hous. Corp. v. United States, 113 Fed. Cl. 244, 253 (2013),

aff’d, 579 F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United States,

93 Fed. Cl. 720, 726–27 (2010), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 2011);

Legal Aid Soc’y of N.Y. v. United States, 92 Fed. Cl. 285, 292, 298 n.14 (2010).

When deciding a case based on a failure to state a claim, the court “must accept

as true the factual allegations in the complaint.” Engage Learning, Inc. v. Salazar, 660

F.3d 1346, 1355 (Fed. Cir. 2011); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true

all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly,

550 U.S. at 555–56 (citing Swierkiewicz v. Sorema N. A., 534 U.S. at 508 n.1))); Scheuer

v. Rhodes, 416 U.S. at 236 (“Moreover, it is well established that, in passing on a motion

to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for

failure to state a cause of action, the allegations of the complaint should be construed

favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S.

800 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190 (1984); Am. Bankers

Ass’n v. United States, 932 F.3d at 1380 (“In reviewing a motion to dismiss, we accept as

true the complaint’s well-pled factual allegations; however, we are not required to accept

the asserted legal conclusions.” (citing Ashcroft v. Iqbal, 556 U.S. at 678)); Harris v.

United States, 868 F.3d 1376, 1379 (Fed. Cir. 2017) (citing Call Henry, Inc. v. United

States, 855 F.3d 1348, 1354 (Fed. Cir. 2017)); United Pac. Ins. Co. v. United States, 464

F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d

1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906

(2003).

As indicated above, plaintiffs’ second amended complaint alleges that the

government failed “to properly compensate employees for the entire continuous

workday,” as required by the FLSA and 5 C.F.R. § 551.501 (2021). Plaintiffs argue that

“[p]laintiffs and other employees similarly situated have been entitled to FLSA overtime

pay for all hours of work in excess of eight (8) in a day and/or forty (40) in a workweek,”

citing to 29 U.S.C. § 207(a) of the FLSA; and 5 C.F.R. § 551.501. Section 7(a)(1) of the

FLSA, states:

(1) Except as otherwise provided in this section, no employer shall employ

any of his employees who in any workweek is engaged in commerce or in

the production of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for commerce, for a

workweek longer than forty hours unless such employee receives

compensation for his employment in excess of the hours above specified at

a rate not less than one and one-half times the regular rate at which he [or

she] is employed.

6

29 U.S.C. § 207(a)(1). The regulation at 5 C.F.R. § 551.501 incorporates the FLSA’s

direction for how to calculate federal employees’ overtime compensation, stating: “An

agency shall compensate an employee for all hours of work in excess of 8 in a day or 40

in a workweek at a rate equal to one and one-half times the employee's hourly regular

rate of pay,” with limited, articulated exceptions. 5 C.F.R. § 551.501. Plaintiffs argue that

their pre-and post-shift activities, which include security screening, collecting and donning

security equipment, entering the sally port and flipping their accountability chits, walking

to their assigned posts, performing an equipment and information exchange at their

assigned posts, and walking to the exit of the Beaumont Institution, constitute work for

which they are not, but should be compensated. Defendant does not dispute that plaintiffs

are conducting the activities plaintiffs allege occur, nor does defendant deny that plaintiffs

are not being compensated for those activities. Instead, defendant argues that such

activities are not compensable because “plaintiffs fail to plausibly allege that any of these

activities are both an intrinsic element of their principal activities and take more than a de

minimis amount of time.”

The Fair Labor Standards Act and the Portal-to-Portal Act

The FLSA does not define what constitutes work under the statute as applicable

to the case currently under review. See Tenn. Coal, Iron & R. Co. v. Muscoda Loc. No.

123, 321 U.S. 590, 597 (1944) (“[W]e are not guided by any precise statutory definition of

work or employment. Section 7(a) [of the FLSA] merely provides that no one, who is

engaged in commerce or in the production of goods for commerce, shall be employed for

a workweek longer than the prescribed hours unless compensation is paid for the excess

hours at a rate not less than one and one-half times the regular rate.”) (alteration added).

The regulation at 29 C.F.R. § 785.6 (2020) also states, “[t]he [FLSA], however, contains

no definition of ‘work.’ Section 3(o) of the [FLSA] contains a partial definition of ‘hours

worked’ in the form of a limited exception for clothes–changing and wash–up time.”

9 C.F.R. § 785.6. The regulations do contain some examples of what does and what does

not constitute work. The regulation at 29 C.F.R. § 785.11 (2020) states:

For example, an employee may voluntarily continue to work at the end of

the shift. He may be a pieceworker, he may desire to finish an assigned task

or he may wish to correct errors, paste work tickets, prepare time reports or

other records. The reason is immaterial. The employer knows or has reason

to believe that he is continuing to work and the time is working time.

In general terms, the United States Supreme Court has interpreted the FLSA and

“defined ‘work’ as ‘physical or mental exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily and primarily for the benefit of the

employer and his business.’” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 31 (quoting

Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. at 598). The Supreme

Court “defined ‘the statutory workweek’ to ‘includ[e] all time during which an employee is

necessarily required to be on the employer's premises, on duty or at a prescribed

workplace.’” Id. (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91

(1946)).

7

After the Supreme Court in Anderson and Tennessee Coal “found compensable

the time spent traveling between mine portals and underground work areas” as well as

“the time spent walking from timeclocks to work benches,” the decisions “provoked a flood

of litigation.” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 31 (citing Anderson v. Mt.

Clemens Pottery Co., 328 U.S. at 690–91; and Tenn. Coal, Iron & R. Co. v. Muscoda

Local No. 123, 321 U.S. at 598). Following Anderson, “unions and employees filed more

than 1,500 lawsuits under the FLSA,” which sought “nearly $6 billion in back pay and

liquidated damages for various preshift and postshift activities.” Id. at 31–32 (citing S.

Rep. No. 37, at 2–3 (1947)). As noted by the Supreme Court in Integrity Staffing,

Congress found these expansive definitions of “work” problematic. See id. at 32 (quoting

29 U.S.C § 251 (2012)) (“[The FLSA] has been interpreted judicially in disregard of long-

established customs, practices, and contracts between employers and employees,

thereby creating wholly unexpected liabilities, immense in amount and retroactive in

operation, upon employers.”).

Congress, concerned that the decisions in Anderson and Tennessee Coal created

“wholly unexpected liabilities, immense in amount and retroactive in operation,” that

“would bring about financial ruin of many employers and seriously impair the capital

resources of many others, thereby resulting in the reduction of industrial operations,

halting of expansion and development, curtailing employment, and the earning power of

employees,” 29 U.S.C. § 251(a), sought to narrow the definition of “work” within the FLSA,

in 1947, with the Portal-to-Portal Act, 29 U.S.C §§ 251–62 (1947), which exempted

employers from “liability or punishment under the [FLSA]” for certain activities. See

29 U.S.C. §§ 251–62; see also Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 32 (stating

that Congress found that the FLSA had been interpreted too broadly and passed the

Portal-to-Portal Act to narrow the scope of what constitutes compensable work).

The Portal-to-Portal Act states, at 29 U.S.C. § 254, now states:

(a) no employer shall be subject to any liability or punishment under the Fair

Labor Standards Act, as amended, the Walsh-Healey Act, or the Bacon-

Davis Act, on account of the failure of such employer to pay an employee

minimum wages, or to pay an employee overtime compensation, for or on

account of any of the following activities of such employee engaged in on

or after May 14, 1947—

(1) walking, riding, or traveling to and from the actual place of performance

of the principal activity or activities which such employee is employed to

perform, and

(2) activities which are preliminary to or postliminary to said principal activity

or activities,

which occur either prior to the time on any particular workday at which such

employee commences, or subsequent to the time on any particular workday

at which he ceases, such principal activity or activities.

29 U.S.C § 254 (2018).

8

Thereafter, the Department of Labor (DoL) issued the “continuous-workday” rule,

which interprets the Portal-to-Portal Act, and which states, “[p]eriods of time between the

commencement of the employee’s first principal activity and the completion of his last

principal activity on any workday must be included in the computation of hours worked to

the same extent as would be required if the Portal Act had not been enacted.”

29 C.F.R. § 790.6(a) (2020). In other words, “[o]nce the work day starts, all activity is

ordinarily compensable until the work day ends.” Castaneda v. JBS USA, LLC, 819 F.3d

1237, 1243 (10th Cir. 2016); see also Aguilar v. Mgt. & Training Corp., 948 F.3d at 1279

(finding that for detention officers, an initial security screening was integral and

indispensable to their principal activities and, therefore, started their workday). In the case

currently before the court, plaintiffs claim that upon entering the security screening, their

workday begins, and every activity thereafter should be compensable. Defendant alleges,

however, that “plaintiffs have not plausibly alleged that any of these preliminary and

postliminary activities are both ‘integral and indispensable’ to the work that they are

‘employed to perform,’” and are not compensable. See Integrity Staffing Sols., Inc. v.

Busk, 574 U.S. 32–33. The issues before this court, therefore, are what defines plaintiffs’

“principal activity or activities” and which activities are, as alleged by plaintiffs,

compensable because they are “integral and indispensable” to the performance of

plaintiffs’ principal activities.

The Supreme Court in Integrity Staffing wrote that “an activity is integral and

indispensable to the principal activities that an employee is employed to perform—and

thus compensable under the FLSA—if it is an intrinsic element of those activities and one

with which the employee cannot dispense if he is to perform his principal activities.” Id. at

37. In Integrity Staffing, warehouse workers brought suit for back pay, claiming that the

time that employees spent waiting to undergo and going through an antitheft security

screening before leaving the warehouse was compensable. See id. at 29. The Supreme

Court in Integrity Staffing concluded that “[b]ecause the employees’ time spent waiting to

undergo and undergoing Integrity Staffing’s security screenings does not meet these

criteria, we reverse the judgment of the Court of Appeals,” and held that those activities

were not compensable. Id. In a concurrence to the majority’s decision in Integrity Staffing,

Justice Sotomayor clarified that “an activity is ‘indispensable’ to another, principal activity

only when an employee could not dispense with it without impairing his ability to perform

the principal activity safely and effectively.” Id. at 38–39 (Sotomayor, J., concurring).

Justice Sotomayor continued that “although a battery plant worker might, for example,

perform his principal activities without donning proper protective gear, he could not do so

safely; likewise, a butcher might be able to cut meat without having sharpened his knives,

but he could not do so effectively.” Id. at 38 (internal citations omitted) (citing Mitchell v.

King Packing Co., 350 U.S. 260, 262–63 (1956); Steiner v. Mitchell, 350 U.S. 247, 250–

53 (1956); 29 C.F.R. § 790.8(c) (2013)).

Furthermore, the Supreme Court stated that “[t]he word ‘integral’ means

‘[b]elonging to or making up an integral whole; constituent, component; spec[ifically]

necessary to the completeness or integrity of the whole; forming an intrinsic portion or

element, as distinguished from an adjunct or appendage.’” Id. at 33 (alterations and

emphasis in original) (quoting 5 Oxford English Dictionary 366 (1933)). The word

9

“‘indispensable’ means a duty ‘[t]hat cannot be dispensed with, remitted, set aside,

disregarded, or neglected.’” Id. (quoting 5 Oxford English Dictionary 219 (1933)). “An

activity is therefore integral and indispensable to the principal activities that an employee

is employed to perform if it is an intrinsic element of those activities and one with which

the employee cannot dispense if he is to perform his principal activities.” Id. As discussed

below, however, the Supreme Court has questioned over broad definitions of what

qualifies as an employee’s principal activities. See IBP, Inc. v. Alvarez, 546 U.S. 21, 40–

41 (2005) (citing Steiner v. Mitchell, 350 U.S. at 247) (“[T]he fact that certain preshift

activities are necessary for employees to engage in their principal activities does not

mean that those preshift activities are ‘integral and indispensable’ to a ‘principal activity’

under Steiner.”).

In their second amended complaint, plaintiffs characterize their principal activities

as “maintaining safety and security of staff, inmates, and the Institution.” Plaintiffs’ second

amended complaint also states that their principal activities include “supervising and

monitoring inmates and maintaining safety and security.” As stated above, defendant

argues that plaintiffs failed to state a claim because the claim “fails to establish a ‘principal

activity’ as a matter of law because ‘safety and security’ are not specific activities—much

less ‘principal activities,’ as required.” Defendant argues that “the Court should instead

consider the alleged activities through which plaintiffs pursue their goal of ‘safety and

security.’” (emphasis in original). Defendant asserts:

Plaintiffs allegedly pursue “safety and security” by “maintaining constant

vigilance” for “contraband” and events “out of the ordinary,” and by

“addressing any issues that they see.” With this framework in mind, we

address whether plaintiffs have plausibly alleged that each of the pre- and

post-shift activities is necessary to the principal activity plaintiffs are paid to

do, i.e., supervising inmates and addressing any issues they see.

(emphasis in original).

Defendant appears to assert that plaintiffs’ “generalized goal” of “maintain[ing]

safety and security of the Institution, inmates, and staff” and “supervising and monitoring

safety and security” are not specific or descriptive enough as plaintiffs’ principal activities

to defeat a motion to dismiss; the court disagrees. The principal duties of prison guards

at a penal institution are directed exactly towards maintaining safety and security of the

facility, staff, and inmates in the Beaumont Institution, without which all parts of the

Beaumont Institution could not function. Moreover, defendant’s statement of plaintiffs’

duties as “supervising inmates and addressing any issues that they see” appears to

amount to essentially the same as plaintiffs’ definitions of their principal duties of

“maintaining constant vigilance to ensure that nothing out of the ordinary is occurring,

immediately addressing any issues they see,” “maintaining safety and security of staff,

inmates, and the Institution,” as well as “supervising and monitoring inmates.”

As to plaintiffs’ claims regarding overtime pay for time alleged as compensable

before and after arriving at their assigned posts, the United States Court of Appeals for

the Federal Circuit has explained, “[t]he more the preliminary (or postliminary) activity is

10

undertaken for the employer's benefit, the more indispensable it is to the primary goal of

the employee's work, and the less choice the employee has in the matter, the more likely

such work will be found to be compensable.” Bobo v. United States, 136 F.3d 1465, 1467

(Fed. Cir. 1998) (internal quotation marks omitted) (quoting Reich v. New York City

Transit Auth., 45 F.3d 646, 650 (2d Cir. 1995)).

Plaintiffs argue that “[a]ll of Plaintiffs’ pre-shift and post-shift tasks are intimately

connected to and are absolutely required for Plaintiffs to safely perform their job duties to

ensure they can maintain safety and security inside the Institution and go home in one

piece at the end of the workday.” According to plaintiffs, “multiple courts have held these

same tasks [as those alleged in this case] performed by correctional workers in a prison

setting constitute compensable work under the FLSA.” Plaintiffs rely on Aguilar v.

Management & Training Corp., in which 122 correctional officers claimed they were not

paid for certain pre- and post-shift activities that should have been compensable under

the FLSA. See Aguilar v. Mgt. & Training Corp., 948 F.3d at 1274. In Aguilar, the United

States Court of Appeals for the Tenth Circuit found that “undergoing the security

screening, receiving the preshift briefing, picking up and returning keys and equipment,

and walking to and from post—are integral and indispensable to the officers’ principal

activities.” Id. at 1277. Key to the Tenth Circuit’s reasoning was that the pre- and post-

shift activities are “tied to the productive work that the employee is employed to perform.”

Id. (emphasis in original) (quoting Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 36).

The Tenth Circuit further noted that the activities must “share the same purpose.” Aguilar

v. Mgt. & Training Corp., 948 F.3d at 1278. Plaintiffs also cited Roberts v. State, 483 P.3d

212 (Ariz. App. 1st Div. 2021), which stated “[i]n considering whether the security

screenings are integral to the Officers’ principal activities, we are persuaded by Aguilar v.

Mgt. & Training Corp., 948 F.3d 1270 (10th Cir. 2020), which held that the time corrections

officers spent undergoing pre-shift security screenings was compensable.” Roberts v.

State, 483 P.3d at 220.

Defendant points out that not all courts have agreed with the Tenth Circuit’s view

on whether these pre- and post-shift activities are indispensable to a detention officers’

principal activities. For example, defendant cites to Hootselle v. Missouri Department of

Corrections, 624 S.W.3d 123 (Mo. 2021), in which the Missouri Supreme Court held that

the time that corrections officers spent going through security screenings and receiving

assignments was not “integral to supervising, guarding, escorting, or disciplining

offenders.”3 Id. at 140. The Hootselle court noted that the Tenth Circuit in Aguilar v.

Management & Training Corp., 948 F.3d 1270, “found submitting to a correctional facility’s

security procedures was integral and indispensable to the officers’ principal activities of

maintaining custody and discipline of inmates and providing security, in part, because the

screenings and the principal activities shared the same goals of providing prison security.”

Hootselle v. Mo. Dep’t of Corrections, 624 S.W.3d at 140. The Hootselle court disagreed

with this approach, stating that the Tenth Circuit subtly expanded “the test formulated in

3 The Hootselle court did, however, find that the time that the corrections officers spent

picking up and returning equipment as well as the time spent walking to and away from

the officers’ assigned posts while on duty were principal activities which were

compensable. See Hootselle v. Mo. Dep’t of Corrections, 624 S.W.3d at 140–42.

11

Busk, and Aguilar cites no authority for the proposition that an activity may be integral if

it shares a common goal with the work.” Id. (citing Integrity Staffing Sols., Inc. v. Busk,

574 U.S. at 36; and Aguilar v. Mgt. & Training Corp., 948 F.3d at 1270). Moreover, the

Hootselle court stated that following the example of Aguilar “would likely result in the very

issue the Portal-to-Portal Act was passed to address – unexpected liabilities due to an

overly broad definition of compensable work.” Hootselle v. Mo. Dep’t of Corrections, 624

S.W.3d at 140. Defendant also cites to an unreported United States District Court for the

Northern District of Ohio case, Henderson v. Cuyahoga County, which granted a motion

to dismiss in an FLSA case brought by correctional officers who sought compensation for

time spent going through a pre-shift security screening, because going through such

screenings was “akin to checking in and out and waiting in line to do so—activities that

Congress clearly deemed to be preliminary or postliminary.” Henderson v. Cuyahoga

Cnty., No. 1:20 CV 1351, 2020 WL 5706415, at *3 (N.D. Ohio Sept. 24, 2020) (quoting

Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 37) (Sotomayor, J., concurring) (citing S.

Rep. No. 48, at 47 (1947); 29 C.F.R. § 790.7(g) (2013)).

From the relevant statutes, regulations, and the different caselaw interpretations,

the court concludes that defining which activities are “integral and indispensable” or

“intrinsic” to a “principal activity” for FLSA purposes is a fact specific inquiry. See, e.g.,

Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 37 (conducting a fact specific analysis

before concluding that the time spent waiting to undergo a security screening was not

“integral and indispensable” to the duties of the warehouse workers); Aguilar v. Mgt. &

Training Corp., 948 F.3d at 1289 (in which the court conducted a fact intensive inquiry

before deciding that the time spent by detention officers going through a security

screening was “integral and indispensable” to their principal activities, and that it should

be compensable under the FLSA); Llorca v. Sheriff, Collier Cnty., Fla., 893 F.3d 1319,

1324 (11th Cir. 2018) (“The inquiry is fact-intensive and not amenable to bright-line rules.

Nevertheless, whether a particular set of facts and circumstances is compensable under

the FLSA is a question of law for the Court to decide.”); Astor v. United States, 79 Fed.

Cl. 303, 312 (2007) (“[A]n employee’s primary duty characterization remains a case-by-

case determination.”); Hootselle v. Mo. Dep’t of Corrections, 624 S.W.3d at 137 (citing

Llorca v. Sheriff, Collier Cnty. Fla., 893 F.3d at 1324) (stating that determining whether

an activity is integral and indispensable to the work that corrections officers are employed

to do requires a fact-intensive inquiry); 29 C.F.R. § 790.7(h) (2020) (providing that the

circumstances may determine if a preliminary or postliminary activity is compensable).

Plaintiffs identify six different pre- and post-shift activities they allege are integral

and indispensable to their principal activities and for which they are not being

compensated, but should be: (1) a security screening, (2) collecting and donning security

equipment, (3) entering the sally port and flipping their accountability chit, (4) walking to

their assigned post, (5) equipment and information exchange at the assigned post, and

(6) responding while walking from their assigned post to the exit of the Beaumont

Institution.

12

(1) Security Screening

The first pre-work activity for which plaintiffs claim they should be compensated is

the security screening at the entrance to the Beaumont Institution, where plaintiffs claim

to “perform their principal activity of maintaining safety and security by assuring that no

contraband enters the Institution.” Plaintiffs state that

[c]learing the security screening site is integral and indispensable to

Plaintiffs’ principal activity of maintaining safety and security of staff,

inmates, and the Institution, because it is intrinsic to that principal activity

and one with which they cannot dispense if they are to safely perform their

job duties as correctional officers in the dangerous prison environment.

Defendant argues that plaintiffs offer a “conflation of ‘principal activities’ with

abstract general purposes.” As indicated above, defendant argues that “safety and

security” is merely a goal, for which plaintiffs’ principal activities are “the alleged activities

through which plaintiffs pursue their goal of ‘safety and security.’” (emphasis in original).

The court finds defendant’s arguments as to the inadequacies of plaintiffs’ stated

definition of their principal activities unpersuasive. Plaintiffs stated that their principal

activities are “maintaining safety and security of the Institution, the inmates, and staff,”

and “supervising and monitoring inmates and maintaining safety and security” at a prison

facility, which, albeit articulated in different words, is essentially synonymous with

defendant’s statement of plaintiffs’ duties of “supervising inmates and addressing any

issues that they see.” In the case currently before the court, regarding the security

screening that plaintiffs undergo, plaintiffs allege claims which are sufficient to defeat a

motion to dismiss when the six specific activities for which plaintiffs claim compensation

is due are taken in the context of the security duties the prison guards are assigned during

their shifts. Although the Supreme Court in Integrity Staffing Solutions, Inc. v. Busk

indicated security screenings for warehouse workers who packed products for shipment

were not integral and indispensable to their duties as warehouse workers, there is a clear

distinction between what is integral and indispensable for warehouse workers, and what

is integral and indispensable for prison guards, for whom activities related to the safety of

the inmates and staff depend, in part, on proper screening. See Integrity Staffing Sols.,

Inc. v. Busk, 574 U.S. at 35; see also IBP, Inc. v. Alvarez, 546 U.S. at 40 (holding that the

time that poultry plant workers spent waiting to don their gear was not compensable under

the FLSA); Whalen v. United States, 93 Fed. Cl. 579, 600 (2010) (Mandatory security

inspections for air traffic controllers at an Air Force Base were deemed “not integral and

indispensable to their principal activities as air traffic controllers.”). Although plaintiffs’

second amended complaint does not offer a great deal of detail, it appears from the

second amended complaint, that passing through various security steps at the Beaumont

Institution could be central to plaintiffs’ assigned duties, as well as after they have passed

through security, as plaintiffs, for example, are expected to perform required activities as

prison guards, by responding to security incidents as they arise and watching for

contraband. As discussed below, one test for whether an activity is “integral and

indispensable” to a principal activity is whether the employer could have eliminated the

activity without negatively impacting the safety or effectiveness of those on the premises.

See Integrity Staffing Sols., Inc. v. Busk, 574 U.S. at 38–39 (Sotomayor, J., concurring)

13

(“As both Department of Labor regulations and our precedent make clear, an activity is

‘indispensable’ to another, principal activity only when an employee could not dispense

with it without impairing his ability to perform the principal activity safely and effectively”).

Although in Henderson v. Cuyahoga County, 2020 WL 5706415, the court, in an

unreported opinion, wrote that the Henderson plaintiff, and similarly situated detention

officers, “could still perform his job [at a medium-maximum security prison] effectively if

the pre-shift screenings were eliminated,” the court is not convinced at this time that the

security screenings for personnel and for persons who work at a facility which houses

more than 4,300 inmates, including some who are violent offenders, should be

discounted. See id. at *3. The allegations in plaintiffs’ second amended complaint are

sufficient, at this time, to defeat defendant’s motion to dismiss. Plaintiffs will be required

to offer more evidence on this point to ultimately prevail.

(2) Collecting and Donning Security Equipment

Plaintiffs’ second pre-work activity claimed as compensable relates to when

plaintiffs “collect and don their duty belts and other required equipment after clearing the

staff screening site, including required metal chains and chits, which are essential to hold

keys and access equipment.” Since the adoption of the Portal-to-Portal Act, the Supreme

Court has held:

[A]ctivities, such as the donning and doffing of specialized protective gear,

that are “performed either before or after the regular work shift, on or off the

production line, are compensable under the portal-to-portal provisions of the

Fair Labor Standards Act if those activities are an integral and indispensable

part of the principal activities for which covered workmen are employed and

are not specifically excluded . . . .”

IBP, Inc. v. Alvarez, 546 U.S. at 30 (quoting Steiner v. Mitchell, 350 U.S. at 256). Although

the FLSA explicitly does not allow compensation for “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,”

29 U.S.C. § 203(o), the Supreme Court has distinguished between putting on specialized

protective gear and changing clothes. Sandifer v. United States Steel Corp., 571 U.S.

220, 233 (2014). The Supreme Court has noted that “dictionaries from the era of

§ 203(o)’s enactment indicate that ‘clothes’ denotes items that are both designed and

used to cover the body and are commonly regarded as articles of dress.” Sandifer v.

United States Steel Corp., 571 U.S. at 227 (emphasis in original). The Supreme Court

also has indicated that the definition does not necessarily exclude items designed and

used to protect against workplace hazards. See id. at 228. In Sandifer, steelworkers

brought a collective action against their employer, United States Steel Corporation,

alleging that it failed to compensate them for “time spent donning and doffing protective

gear.” See id. at 224. In that case, the Supreme Court considered as clothing a flame-

retardant jacket, pair of pants, and hood, a hardhat, a snood, wristlets, work gloves,

leggings, and metatarsal boots. See id. at 233. By contrast, the Supreme Court stated

14

that safety glasses, earplugs, and a respirator were not considered clothes. See id.

For correctional officers, some courts have ruled that picking up specialized

equipment can be related to a correctional officers’ principal activity. See Aguilar v. Mgt.

& Training Corp., 948 F.3d at 1283 (determining that picking up keys and chits, an

individualized metal coin that records who has the equipment, is “integral and

indispensable to the officers’ principal activities of maintaining custody and discipline of

the inmates and providing security.”); see also Hootselle v. Mo. Dep’t of Corrections, 624

S.W.3d at 141 (concluding that retrieving keys and radios immediately “demonstrate[s]

the time spent picking up and returning equipment used in supervising, guarding,

escorting, and disciplining offenders on shift is a principal activity”).

Opinions issued by courts not precedential for this court have looked to whether

donning and doffing gear was required by the employer or undertaken for the employer’s

benefit to determine whether the activities were compensable, and also have affirmed the

specific nature of that inquiry. See, e.g., Chayoga v. City of Chicago, 992 F.3d 607, 622–

23 (7th Cir. 2021) (holding that the time the police department’s Special Weapons and

Tactics (SWAT) Unit spends transporting, loading, and unloading SWAT equipment and

firearms inside their homes is not compensable under the FLSA, even where the city

employer requires the officers to transport their gear home with them after every shift,

because those activities were not integral and indispensable to carrying out officers’

principal law enforcement duties, as officers “are still able to perform their principal duties

if they do not bring their equipment home but rely on other arrangements”); Llorca v.

Sheriff, Collier Cnty., Fla., 893 F.3d at 1324 (stating that just because an employer

requires or benefits from an activity does not render such activity compensable and

finding that county deputies were not entitled to compensation for donning and doffing

protective gear because “it is not ‘integral’ to the deputies’ principal activities”); Perez v.

Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011) (concluding that donning and doffing

bump caps, ear plugs, smocks, aprons, hair and beard nets, gloves, and steel-toed boots

by poultry processing plant employees, who worked “butchering and processing

chickens,” was compensable in part because doing so primarily benefitted the employer);

Franklin v. Kellogg Co., 619 F.3d 604, 619–20 (6th Cir. 2010) (concluding that for

employees at a factory that produced frozen breakfast foods, donning and doffing

company-provided “pants, snap-front shirts bearing the Kellogg logo and employee’s

name, and slip-resistant shoes” was compensable, even though employees could

perform their jobs without it, because it was required by and primarily benefitted the

employer); De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 371–73 (3d Cir. 2007)

(rejecting “exertion” as a test for compensability for employees at a chicken processing

complex and suggesting that the correct focus was whether donning and doffing on the

employer’s premises is required by the employer, the law, or the nature of the job);

Alvarez v. IBP, Inc., 339 F.3d 894, 902–04 (9th Cir. 2003) (concluding that donning and

doffing protective gear by meat packing plant employees was compensable in part

because doing so was required by and for the benefit of the employer); Reich v. IBP, Inc.,

38 F.3d 1123, 1124–26 (10th Cir. 1994) (concluding that donning and doffing items such

as hard hats, safety glasses, ear plugs, and safety shoes for employees “engaged in the

slaughter, processing, and packing of beef and pork” did not meet the definition of “work”

15

in the FLSA and, although required and valuable to the employer, it was primarily for the

benefit of the employees and was therefore not compensable).

Plaintiffs allege that “[o]nce Plaintiffs arrive at their posts inside the Institution, they

continue to perform unpaid safety and security work as they inspect, account for, and

exchange equipment—including but not limited to radios, oleoresin capsicum (‘OC’) spray

and keys—with the outgoing correctional officer assigned to that post.” Plaintiffs argue

that “[r]etrieving and donning the duty belt and metal chains and chits must be performed

on Defendant’s premises after clearing the screening site because Plaintiffs cannot wear

their duty belts and metal chains as they walk through the upright metal detector without

sounding the alarm.” Plaintiffs continue:

[C]ollecting and donning security and accountability equipment on the

Institution’s premises is integral and indispensable to Plaintiffs’ principal

activity of maintaining safety and security of staff, inmates, and the

Institution because these activities are intrinsic to that principal activity, and

ones with which they cannot dispense if they are to safely perform their job

duties as correctional officers in the dangerous prison environment.

Defendant’s motion to dismiss argues that “[p]laintiffs have not included any

allegations demonstrating that donning the duty belt, metal chains, and chits at this

juncture is ‘integral and indispensable’ to the correctional officers’ principal activities.”

Defendant argues, without support, that “plaintiffs cannot truthfully allege that the duty

belts must be donned on site because plaintiffs can wear metal-free belts, which would

pass through the detector.” Defendant also argues because plaintiffs do not receive their

equipment immediately after screening, but at their post, “plaintiffs have not demonstrated

that donning the belt before then would serve any purpose—much less that it would be

‘integral and indispensable’ to their principal activities.” Plaintiffs argue that because they

do not pick up their keys until they reach their post within the Beaumont Institution, that

plaintiffs should be compensated for picking up their keys and equipment, which are

indeed integral and indispensable to plaintiffs’ principal duties. Plaintiffs’ allegations must

be proven by factual inquiry, but their second amended complaint is sufficient to defeat

defendant’s motion to dismiss at this time. Further specific factual inquiry related to

plaintiffs’ allegations, along with factual proof, will be necessary for plaintiffs to ultimately

prevail.

(3) Entering the Sally Port and Flipping the Accountability Chit

The third pre-work activity that plaintiffs claim should be compensated, but has not

been, is after plaintiffs collect and don their belts, they enter the “sally port, where they

are required to flip their accountability chit signifying that they are on duty and inside the

secured confines of the Institution.” Plaintiffs argue that they “continue to perform unpaid

security work after clearing the slider or sallyport and while walking to their 24-hour posts

inside the secure confines of the Institution.” Defendant, again, argues that plaintiffs have

created a "conflation of ‘principal activities’ with abstract general purposes.” According to

defendant, “plaintiffs have not plausibly alleged that their flipping an accountability chit is

‘integral and indispensable’ to plaintiffs’ principal activities.” Defendant continues, “[f]or

16

this reason, the [Federal Labor Relations Authority] has consistently held that officers’

flipping their accountability chit were not engaging in a compensable . . . activity,” citing

FCI Bastrop & AFGE Local 3828, 69 F.L.R.A. 176, 181 (Jan. 27, 2016) and USP Terre

Haute & AFGE Local 720, 58 F.L.R.A. 327 (Jan. 28, 2003).

At issue is whether these activities are sufficiently tied to plaintiffs’ principal

activities as prison guards. According to plaintiffs, once inside the Beaumont Institution,

they are on duty and responsible for the “safety and security” at the Beaumont Institution

and for the persons inside, inmates, and staff. These early activities in the Beaumont

Institution are plausibly integral and indispensable and, therefore, tied to the prison

guards’ principal activities for which they are hired. In Hootselle, the court wrote:

[A]lthough the corrections officers are not at their posts, they are required

to do the work they are employed to do – specifically, supervising offenders

and, when the need arises, intervening in fights or responding to other

incidents (i.e., guarding and disciplining offenders). This is the same work

expected of the corrections officers during their shifts. The only difference

is where within the facility they do the work, at or away from their posts.

Because the corrections officers are supervising, guarding, and disciplining

offenders during this time, once they are in the presence of inmates and “on

duty and expected to respond” to emergent incidents, they are performing

the work they are employed to do.

Hootselle v. Mo. Dep’t of Corrections, 624 S.W.3d at 142. With regard to defendant’s

motion to dismiss in the above captioned case, plaintiffs should be allowed to prove if the

time plaintiffs, as corrections officers, devote to clearing the sally port and flipping their

accountability chits should be compensable. Further specific proof related to plaintiffs’

claims will be required to ultimately prevail.

(4) Walking to Their Assigned Post

Plaintiffs claim that they should be compensated for the time they spend walking

from security to their assigned posts, during which time they are in uniform and must

monitor inmate security and respond to inmates and staff security issues as they arise.

When plaintiffs “walk[] to their 24-hour posts inside the secure confines of the Institution,”

plaintiffs say they not only go to their assigned posts but they also “supervise and monitor

inmates, observe and correct inmate behavior, respond to inmate questions, check for

security breaches in the perimeter fence and elsewhere inside the Institution, check for

contraband, run to locations where body alarms sound, and respond to other

emergencies as they arise.” Plaintiffs state:

Plaintiffs perform their principal activities of supervising and monitoring

inmates and maintaining safety and security while walking to their assigned

posts inside the secure confines of the Institution because, among other

things, they, at all times, are in uniform, identifiable to the inmates and staff

as correctional officers, and they perform patrol and security work as they

17

walk to their posts, remain vigilant, alert, and ready to (and do) respond to

emergencies.

Defendant, however, asserts that “[b]inding authority holds that [plaintiffs’ walk to their

posts] is not compensable,” citing IBP, Inc. v. Alvarez, 546 U.S. at 40–41; and Integrity

Staffing Solutions, Inc. v. Busk, 574 U.S. at 36. According to defendant, courts often have

found that the Portal-to-Portal Act does not consider an employee’s commute to and from

a place of business to be compensable work time. Defendant cites to Whalen v. United

States, 93 Fed. Cl. 599, in which air traffic controllers claimed that they should be

compensated for the time they spent “submitting to mandatory security inspections at the

entrance and exit gates of Edwards [Air Force Base],” to include time spent driving to and

from security to their posts, “time spent submitting to mandatory vehicle inspections, and

time involved with mandatory base gate closures.” Id. at 601. A Judge of the U.S. Court

of Federal Claims held that security inspections were not “necessary to ensure the safety

of the skies,” and were, therefore, “an extension of plaintiffs’ commute.” Id. at 600. As

such, security inspections in Whalen were not compensable time under the Portal-to-

Portal Act. See id.

Unlike the commute in Whalen, however, during which those air traffic controllers

were not required to vigilantly monitor the skies, during plaintiffs’ walks to their assigned

posts, plaintiffs in the above captioned case “supervise and monitor inmates, observe and

correct inmate behavior, respond to inmate questions, check for security breaches in the

perimeter fence and elsewhere inside the Institution, check for contraband, run to

locations where body alarms sound, and respond to other emergencies as they arise.” 4

Defendant has not refuted factual allegations as to plaintiffs’ prison guard duty obligations

on their walk to their assigned posts. For the purposes of addressing defendant’s motion

to dismiss, plaintiffs have sufficiently stated a claim that in the course of walking to their

duty stations, plaintiffs may be performing duties sufficiently tied to plaintiffs’ principal

activities so as to cause the court to deny defendant’s motion to dismiss.

(5) Equipment and Information Exchange at the Assigned Post

The next pre-shift activity for which plaintiffs allege they should be compensated is

the equipment and information exchange, which occurs at plaintiffs’ assigned posts of

duty. As noted above, when plaintiffs reach their post, according to plaintiffs, they

“exchange equipment—including but not limited to radios, oleoresin capsicum (‘OC’)

4 The DoL has indicated that “the principles which apply in determining whether time spent

in travel is compensable time depends on the kind of travel involved.” U.S. Dep’t of Labor,

Wage & Hour Div., Fact Sheet #22 (July 2008). Consistent with Whalen v. United States,

93 Fed. Cl. 579, “[a]n employee who travels from home before the regular workday and

returns to his/her home at the end of the workday is engaged in ordinary home to work

travel, which is not work time.” U.S. Dep’t of Labor, Wage & Hour Div., Fact Sheet #22.

The court notes, however, “[t]ime spent by an employee in travel as part of their principal

activity, such as travel from job site to job site during the workday, is work time and must

be counted as hours worked.” U.S. Dep’t of Labor, Wage & Hour Div., Fact Sheet #22.

18

spray and keys—with the outgoing correctional officer assigned to that post. Plaintiffs also

perform a vital (but unpaid) information exchange with the outgoing correctional officer

about any significant security events that occurred the previous shift.” Plaintiffs state:

As they exchange equipment and vital, potentially life-saving, information,

Plaintiffs are performing their principal activities of supervising and

monitoring inmates on post . . . by ensuring accountability for keys and

correctional equipment so that such items do not fall into the hands of

inmates, as well as by ensuring that oncoming officers have all information

necessary to maintain the safety and security of the inmates, staff and post

during their shift.

Defendant argues “it is not clear that donning this gear is ‘integral’ or intrinsic to the

correctional officers’ principal activities.” Defendant continues “[b]ecause only one officer

(at most) needs to be supervising the inmates and one officer is being compensated

during the shift-change, plaintiffs have not plausibly alleged that any officer is engaging

in supervisory activities while not being compensated.” It appears that defendant is

arguing that, because only one officer is technically assigned “on duty” during the shift

change, only the compensated officer is expected to actively monitor the Beaumont

Institution and respond to security incidents, should they arise during a shift change. The

court finds defendant’s argument problematic, given the unrefuted allegations that while

in the Beaumont Institution, prison guards are expected to assist with disturbances that

occur and to monitor security in the Beaumont Institution, which houses over 4,300

inmates, some of whom are confined to a high security penitentiary. Moreover, during this

time plaintiffs are working, by direction and with knowledge of defendant. The allegation

that the time spent by plaintiffs exchanging information and equipment at plaintiffs’ guard

post is plausible as “integral and indispensable” to plaintiffs’ principal activities during their

employment. Defendant’s motion in this regard should be denied at this time, and plaintiffs

should be allowed the opportunity to present additional factual information.

(6) Walking from Their Assigned Post After Shifts

Plaintiffs claim the sixth activity for which they should be compensated is after their

assigned shifts, when they are “walking from their posts to exit the secured perimeter”

after the information exchange after completion of their shift and on their way out of the

Institution. During this walk, plaintiffs claim they are “are required to, and do, respond to

emergencies, including violent fights between inmates, within the Institution on unpaid

time when such emergencies occur while they are walking to their posts prior to their

shifts, or while they are walking from their posts back to the Control Center after their

shifts.” Plaintiffs allege that “[f]ailure to respond to an emergency results in discipline up

to and including termination.” Just as when plaintiffs walk to their post after flipping their

accountability chits, when walking to the exit, plaintiffs are still required to perform many

of their assigned duties such as responding to emergencies and checking for contraband

and security breaches. Like when plaintiffs walk to their post, these activities are

plausible, compensable activities under the FLSA and sufficiently tied to plaintiffs’

principal activity for which they are hired. Defendant’s motion to dismiss for failure to state

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a claim in this regard should be dismissed.

The De Minimis Rule

The FLSA implementing regulation at 5 C.F.R. § 551.412(a)(1) states:

If an agency reasonably determines that a preparatory or concluding activity

is closely related to an employee's principal activities, and is indispensable

to the performance of the principal activities, and that the total time spent in

that activity is more than 10 minutes per workday, the agency shall credit

all of the time spent in that activity, including the 10 minutes, as hours of

work.

The DoL regulations regarding the de minimis doctrine also provide that “insubstantial or

insignificant periods of time beyond the scheduled working hours, which cannot as a

practical administrative matter be precisely recorded for payroll purposes, may be

disregarded. The courts have held that such trifles are de minimis.” 29 C.F.R. § 785.47

(2020) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 680). Despite the

foregoing, “[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 [or she] is regularly required to spend on duties assigned to him [or

her].” Id.

In filings in this court, defendant argues that for plaintiffs’ FLSA claim to survive

this motion to dismiss, plaintiffs must plausibly allege that their pre- and post-shift

activities are both “integral and indispensable to their principal activities and that the time

they spent performing any such compensable work per day is greater than the 10-minute

de minimis threshold.” Defendant asserts:

The regulations require an agency to credit time spent in preparatory or

concluding activities as work only if the “agency reasonably determines that

[such] activity is closely related to an employee’s principal activities, and is

indispensable to the performance of the principal activities, and that the total

time spent in the activity is more than 10 minutes per workday . . . .”

5 C.F.R. § 551.412(a)(1); accord 5 C.F.R. § 550.112(b)(1)(i).

(emphasis and alterations in original).

Defendant notes that “precedent holding that the de minimis rule applies ‘even in

the context of preshift or postshift activities that regularly recur,’” quoting Riggs v. United

States, 21 Cl. Ct. 664, 682 (1990). Moreover, defendant argues that the “regularity” of the

activities depends largely on the duration “required for their performance,” and that, “it

would be implausible for the duration of the information exchange to not fluctuate with the

amount of information that needs to be conveyed about ‘the previous shift.’” Therefore,

defendant argues that plaintiffs’ failure to parse out the amount of time required for the

individual activities alleged as eligible for compensation is fatal to their case.

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Plaintiffs assert that “[d]efendant entirely misinterprets and misapplies the de

minimis rule.” Plaintiffs continue, “DoL has stated that the de minimis rule ‘applies only

where there are uncertain and indefinite periods of time involved of a few seconds or

minutes of duration, and where the failure to count such time is due to considerations

justified by industrial realities.’” Plaintiffs state that they “have explicitly alleged that their

pre- and post-shift activities take longer than 10 minutes on a daily (i.e., regular and

recurring) basis and that this time is administratively feasible to record.” Therefore,

according to plaintiffs, the activities exceed the de minimis threshold, and, as a result,

should be compensable.

Under the continuous workday rule, the workday encompasses “the period

between the commencement and completion on the same workday of an employee’s

principal activity or activities.” 29 C.F.R. § 790.6(b). If the court were to find some or all of

plaintiffs’ pre- and post-shift activities alleged in plaintiffs’ second amended complaint to

be a compensable under the FLSA, then all activities performed during the “workday” as

defined by 29 C.F.R. § 790.6(b), would be compensable, regardless of whether each

activity had an individual basis for compensability. See 29 C.F.R. § 790.6(b); see also

IBP v. Inc. v. Alvarez, 546 U.S. at 29 (stating that following the Supreme Court’s “prior

decisions interpreting the FLSA, the Department of Labor has adopted the continuous

workday rule”); Aguilar v. Mgt. & Training Corp., 948 F.3d at 1279 (quoting Castaneda v.

JBS USA, LLC, 819 F.3d 1237, 1243 (10th Cir. 2016) (citing 29 C.F.R. § 790.6(a)); see

also Hootselle v. Mo. Dep’t of Corrections, 624 S.W.3d at 128 (“Under the continuous

workday rule, all preshift and postshift activities after the first and before the last principal

activity of either retrieving or returning keys and radios or supervising inmates are also

compensable.”).

The United States Court of Appeals for the Federal Circuit has adopted factors

articulated by the United States Court of Appeals for the Ninth Circuit, stating that

[t]he factors that trial courts must examine when assessing whether the

work underlying a compensation claim is de minimis were properly set forth

in Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), which

suggested analysis of “(1) the practical administrative difficulty of recording

the additional time; (2) the aggregate amount of compensable time; and (3)

the regularity of the additional work.”

Bobo v. United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998) (quoting Lindow v. United

States, 738 F.2d at 1063; see also Easter v. United States, 575 F.3d 1332 (Fed. Cir.

2009); Adams v. United States, 471 F.3d 1321, 1327 (Fed. Cir. 2006). Plaintiffs allege

that their pleadings and the circumstances of their case, as analyzed under the Lindow

factors, “are clearly sufficient to state a claim under the FLSA.” Defendant argues,

however, that the Lindow factors do not apply to the case currently before the court

because plaintiffs have failed to meet the “burden of establishing that their compensable

activities ‘require[] more than a de minimis amount of time.’” (quoting Akpeneye v. United

States, 146 Fed. Cl. 356, 365 (2019)). Defendant continues, quoting Carlsen v. United

States, 521 F.3d 1371, 1380–81 (Fed. Cir.), as corrected on reh’g (Fed. Cir. 2008), that

because “the Lindow factors only appl[y] to ‘amounts greater than 10 minutes,’” the

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Lindow factors should not be applied to plaintiffs’ case.5 (alteration added). Defendant

asserts, however, that even under the Lindow test, “plaintiffs have still not alleged facts

establishing that their compensable activities are more than de minimis.”

Under the first Lindow factor, plaintiffs argue that there is no practical or

administrative difficulty in recording the additional time worked. Rather, plaintiffs allege

that had the Beaumont Institution “implemented time clocks where Plaintiffs perform their

first principal activity (i.e., at the screening site location) and where Plaintiffs perform their

last principal activity (i.e., where Plaintiffs exit the secure perimeter of the Institution), the

unpaid work at issue in this case would have been recorded.” Plaintiffs assert that the

Beaumont Institution’s failure to place the time keeping clocks in locations that would

properly capture plaintiffs’ compensable time was entirely discretionary, and it would not

be overly burdensome on the Beaumont Institution to install time clocks that would

accurately capture all of plaintiffs’ claimed activities. As such, plaintiffs argue that their

claims satisfy the first prong of the Lindow test because the administrative burden on the

Beaumont Institution is low. Defendant argues that plaintiffs’ proposed approach of

placing time clocks near the entrance of the facility is only necessary “if the defendant

were required to compensate plaintiffs for all of the alleged pre-shift and post-shift

activities, including the officers’ non-compensable walk to the exit of the [I]nstitution after

relinquishing their equipment and keys . . . .” (emphasis in original). Defendant reasons,

therefore, that “unless the Court concludes that all of the alleged activities are

compensable, plaintiffs have not articulated a practical or feasible way to record

compensable time—especially in light of activities like the exchange, which will fluctuate

from day to day and post to post.” (emphasis in original). In the motion to dismiss,

defendant, however, has not argued that it would be impossible to record the time.

Under the second Lindow factor, plaintiffs have alleged that the claimed

uncompensated activities take 15 to 30 minutes per shift. Viewed over the course of the

three-year recovery period, the amount of uncompensated time, plaintiffs allege, amounts

to an average of 22.5 minutes per day for a total of 292 hours of unpaid time per plaintiff.

Defendant suggests that because “plaintiffs argue that their compensable time must be

tallied ‘over the course of the three-year recovery period’ for the purposes of the de

minimis doctrine,” and, defendant states, because “no authority we are aware of, including

plaintiff’s [sic] cited cases, supports that proposition,” that plaintiffs’ arguments do not

5Defendant further asserts that activities that take longer than 10 minutes may still be de

minimis, and the court need only

look at the other Lindow factors when addressing whether compensable

activities taking longer than the 10-minute threshold are de minimis. See,

e.g., Akpeneye II, 146 Fed. Cl. at 365 (“Indeed, activities that require even

more time can still be de minimis depending on ‘the practical administrative

difficulty of recording additional time, the aggregate amount of compensable

time, and the regularity of the work.’”) (quoting Carlsen, 521 F.3d at 1380).

(emphasis in original).

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satisfy the second Lindow factor. Plaintiffs’ allegations, if proven correct, may satisfy the

regulation at 5 C.F.R. § 551.412(a)(1), which requires compensation for activities that are

integral and indispensable to the principal activities and which exceed 10 minutes per

day. Moreover, because plaintiffs allege that the amount of time alleged exceeds 10

minutes daily, and defendant has not refuted that allegation, plaintiffs’ allegations could

satisfy the second Lindow factor, which requires that the amount of time at issue is

substantial especially in the aggregate. See Lindow v. United States, 738 F.2d at 1063

(recognizing that other courts had granted relief on claims that were minimal daily, but

substantial in the aggregate over time). The Tenth Circuit’s approach in Reich v. Monfort,

also is instructive. See Reich v. Monfort, 144 F.3d 1329 (10th Cir. 1998). In Reich, the

United States Court of Appeals for the Tenth Circuit interpreted the Lindow factors to

require courts to identify the amount of daily time involved before evaluating whether that

time is de minimis. See Reich v. Monfort, 144 F.3d at 1334. The Reich court ultimately

concluded that donning and doffing safety gear was not de minimis because 10 minutes

per day was sufficiently regular to weigh in favor of compensability. See id.

Regarding the third Lindow factor, which looks to the regularity of the

uncompensated activities, plaintiffs allege that their uncompensated activities occur with

sufficient regularity to assist plaintiffs to survive a motion to dismiss. To satisfy the third

Lindow factor, the activities at issue must occur frequently and regularly, rather than on

an ad hoc basis. See Lindow v. United States, 738 F.2d at 1062–64. In Lindow, the court

found that the 5 to 15 minutes employees spent once or twice per month relieving an

operator shift change was de minimis because the aggregate time was insignificant, the

practice was irregular, and the ad hoc nature of the duty posed administrative difficulties

for recording the time. See id. By contrast, in the case currently before the court, plaintiffs

have alleged that these pre- and post-shift activities are required every time plaintiffs are

assigned to a 24-hour post. Plaintiffs argue that this satisfies the threshold for “regular

and recurring.” Plaintiffs indicate that: “[m]ost of the posts are staffed for 16 or 24 hours

per day, although some are staffed for only 8 hours per day.” Plaintiffs continue that

[w]hen a post is staffed for 24 hours per day, the Defendant assigns a

correctional officer to that post for a scheduled paid shift of 8 hours. For a

24-hour post, there are three 8-hour paid shifts daily, often referred to as

Morning Watch, Day Watch and Evening Watch. There is no overlap of

these 8-hour shifts on 24-hour posts.

(footnote omitted). Plaintiffs also state that “[b]ecause the Institution has implemented a

Compressed Work Schedule option, some 24-hour Housing Unit posts are staffed with

two shifts of 12 hours, instead of three shifts of 8 hours. There is no overlap on the 12-

hour shifts on 24-hour Housing Unit posts.” By contrast, plaintiffs have stated that there

is “a 15-minute scheduled, paid overlap between the two 8 hour shifts on 16-hour posts

in the Institution since at least 2014.” Although questions remain regarding how often and

how much time plaintiffs spend on some of the alleged uncompensated activities at each

of the 24-hour posts, plaintiffs’ allegations are sufficient to survive defendant’s motion to

dismiss. Further evidence is required to establish if these 24-hour posts predominate

throughout the Beaumont Institution, and how often they are staffed in three shifts of 8

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hours or two shifts of 12 hours, as well as their impact on calculating damages if plaintiffs

prevail on liability. To survive defendant’s motion to dismiss, plaintiffs need only allege

unrefuted facts which plausibly entitle them to relief, and the court is required to accept

as true all factual allegations set forth in the second amended complaint. See, e.g.,

Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016). Plaintiffs’ allegations in

their second amended complaint of more than de minimis compensable activity is

sufficient to survive defendant’s motion to dismiss. Whether each of the six activities

plaintiffs claim are compensable and whether the aggregate time spent will exceed the

de minimis standard remains for further consideration by the court.

Plaintiffs’ Claim for Interest on Backpay

In their second amended complaint, plaintiffs also claim they should be “entitled to

recover interest on their backpay damages for Defendant’s failure to pay them overtime

compensation” under the Back Pay Act, 5 U.S.C. § 5596. Defendant does not challenge

the general applicability of the of the Back Pay Act for FLSA claims. “The Back Pay Act

is not itself a jurisdictional statute. It is merely derivative in application, depending on a

prior finding of appropriate jurisdiction in the Claims Court.” Mitchell v. United States, 930

F.2d 893, 897 n.3 (Fed. Cir. 1991) (citing United States v. Connolly, 716 F.2d 882, 887

(Fed. Cir. 1983); and Shelleman v. United States, 9 Cl. Ct. 452 (1986)). Absent some

other money-mandating source of law, the Back Pay Act is inapplicable for plaintiffs. See

Spagnola v. Stockman, 732 F.2d 908, 912 (Fed. Cir. 1984). In the case currently before

the court, the FLSA provides the necessary money mandating source of law. See Astor

v. United States, 79 Fed. Cl. 303, 319 (2007) (“The BPA includes a waiver of sovereign

immunity as to interest on awards under the Act” provided that plaintiffs have (1) been

affected by an unjust or unwarranted personnel action, (2) suffered a withdrawal or

reduction of all of part of their pay, and (3) but for the action, plaintiffs would not have

experienced the withdrawal or reduction). Defendant argues that “plaintiffs’ right to relief

under the Backpay Act fails because plaintiffs’ FLSA claims do not survive.” Plaintiffs

assert, citing to Adams v. United States, 48 Fed. Cl. 602, 604–11 (2001), that “because

Plaintiffs have stated a claim under the FLSA for unpaid overtime,” “the Back Pay Act is

similarly applicable, and jurisdiction is proper.” Plaintiffs’ claims are sufficient to defeat

defendant’s motion to dismiss at this time. The FLSA provides a necessary money

mandating source of law to support a claim for interest but consideration of the issue

depends on whether plaintiffs prevail on liability.

CONCLUSION

Each of the activities asserted as compensable by plaintiffs in this case must be

analyzed after fact intensive inquiry. The ultimate outcome as to each alleged

compensable activity is not decided at this time. Plaintiffs have raised sufficient, unrefuted

allegations and have stated sufficient claims to defeat defendant’s motion to dismiss.

Further evidence also will be required to assess whether or not the totality of the claimed

pre- and post-shift activities which plaintiffs perform during the course of assigned time

passes the de minimis test. Defendant’s allegations in its motion to dismiss and reply are

insufficient to defeat plaintiffs’ claims at this stage of the proceedings. For the reasons

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stated above, defendant’s motion to dismiss for failure to state a claim upon which relief

can be granted is DENIED. Further proceedings will be scheduled by separate Order.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

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