Ernesto Adrian-Favela v. Empire Scaffold, L
875 F.3d 222
| 5th Cir. | 2017Background
- Empire Scaffold employed Bridges, Gonzalez, and Alanis to erect/dismantle scaffolding on Motiva’s Crude Expansion Project; scheduled shifts began at 7:00 a.m.
- Empire required workers to take employer-arranged buses (last bus 6:15 a.m.) to a lunch-tent check-in site inside the refinery; employees could not access the site by other means.
- Employees waited at the lunch tents from arrival until the 7:00 a.m. shift-start horn; Empire did not require any principal activities (e.g., work at live units, safety meetings, JSAs) before 7:00 a.m.
- Employees wore PPE for work, but the three appellants did not claim they engaged in productive work during the pre-shift waiting period; they described chatting, smoking, or waiting.
- Plaintiffs sued under the FLSA for unpaid pre-shift time; the district court granted summary judgment for Empire, and the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-shift wait time at the refinery is compensable under the FLSA/Portal-to-Portal Act | The pre-shift wait predominantly benefited Empire (employer control, hazardous site, safety rules), so time is compensable | The wait is preliminary, not integral and indispensable to scaffolding work, and thus excluded by the Portal-to-Portal Act | Not compensable; Portal-to-Portal Act excludes the waiting time |
| Whether the "predominant benefit" test governs compensability | Appellants: earlier precedent supports predominant-benefit analysis | Empire: Supreme Court’s integral-and-indispensable test (post-Busk) controls | Integral-and-indispensable test governs; predominant-benefit is overbroad post-Busk |
| Whether employees performed principal activities before shift start (creating a factual dispute) | Plaintiffs suggested PPE and site conditions tie waiting to productive work | Empire showed no pre-7:00 a.m. principal activities required or performed by these three plaintiffs | No genuine factual dispute: these three did not perform principal activities before 7:00 a.m. |
| Applicability of 29 C.F.R. § 790.7(h) (waiting at assigned place) | Plaintiffs implied the regulation supports compensability when employer requires arrival at site | Empire: employees were not required to be at live work sites by the start time; they were at an internal check-in area | Regulation not implicated on these facts; waiting occurred prior to scheduled shift and outside places where principal activities occurred |
Key Cases Cited
- Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27 (2014) (adopts "integral and indispensable" test and rejects making employer benefit dispositive)
- IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) (predonning wait time held not integral and indispensable)
- Steiner v. Mitchell, 350 U.S. 247 (1956) (changing/showering held integral and indispensable to dangerous manufacturing work)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (broad FLSA interpretation regarding time on employer premises)
- Armour & Co. v. Wantock, 323 U.S. 126 (1944) (predominant-benefit test for on-call firefighters' wait time)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (issue-of-fact approach to compensability of waiting time)
- Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th Cir. 1990) (compensability of wait time during scheduled shifts under predominant-benefit analysis)
- Vega v. Gasper, 36 F.3d 417 (5th Cir. 1994) (remand for findings about the purpose of pre-work wait time)