Local 589, Amalgamated Transit Union et al v. Massachusetts Bay Transportation Authority

Filing 65

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part (as to Count II concerning start-end travel time) and denying in part (as to Count III concerning split-shift travel time) 44 Motion for Partial Summary Judgment; denying 51 Motion for Partial Summary Judgment; granting 63 Motion for Leave to File Document. It is FURTHER ORDERED that as a housekeeping matter Count I be dismissed as duplicative. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LOCAL 589, AMALGAMATED
)
TRANSIT UNION, PATRICK F.
)
HOGAN, TIMOTHY C. BROWN,
)
HERIBERTO CORA, ANDREW HUNTER,)
DAVID JORDAN, STEVEN MAHER,
)
DENNIS PERRY, ALLEN R. LEE,
)
TRACEY SPENCER, JEFFREY
)
WILLIAMS, and all others
)
similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
MASSACHUSETTS BAY
)
TRANSPORTATION AUTHORITY,
)
)
Defendant.
)

CIVIL ACTION NO.
13-11455-DPW

MEMORANDUM AND ORDER
March 31, 2015
Plaintiffs, ten named Massachusetts Bay Transportation
Authority (“MBTA”) employees and their union, claim that they
are owed payment by defendant MBTA for travel time under Federal
and State wage and hour laws.

Before me are cross-motions for

summary judgment on liability. 1

1

The Plaintiffs’ Motion for Summary Judgment also includes a
motion for class certification. On December 4, 2014 I denied
this motion without prejudice, to be reasserted after the
determination of dispositive motions. As will appear, this case
is still not ready to be framed for consideration of class
certification.
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I. BACKGROUND
This action was filed by ten named MBTA employees and their
union, Local 589, Amalgamated Transit Union (“Local 589”), as a
putative class action on behalf of more than 1,500 MBTA
employees.

Local 589 represents part-time and full-time MBTA

operating employees such as bus operators, rapid transit
operators, light rail operators, and customer service agents.
The named plaintiffs are all members of Local 589, and all
currently or formerly worked as operators of MBTA buses, light
rail, or rapid transit equipment.
MBTA operating employees select their daily schedules on a
quarterly basis, with selections made in order of bargaining
unit seniority.

An employee’s schedule can consist of one

repeated route or several different routes.
either a “straight shift” or a “split shift.”

Employees work
A straight shift

occurs when an employee works and is paid for a continual period
of time during the day, such as from 9 a.m. to 5 p.m.

A split

shift occurs when an employee works two separate shifts with an
unpaid break between shifts, such as from 6 a.m. to 10 a.m. and
from 3 p.m. to 7 p.m.
The MBTA and Local 589 are parties to a collective
bargaining agreement (“CBA”) that controls various aspects of
employee compensation.

Pursuant to the CBA, all breaks lasting

less than a half hour are paid, whereas breaks lasting thirty-2-

one minutes or more are unpaid as “meal relief” breaks unless an
employee is working a straight shift, in which case all breaks
are paid.

Full-time employees are guaranteed to receive eight

hours of pay each day, and part-time employees may work up to
thirty hours per week.
Employees are free to do whatever they want during breaks
between shifts so long as they report to work on time after the
break is over.

Sometimes an employee’s second route during a

split shift starts in a different place from where the first
route ended, which requires the employee to travel between the
two locations during the break.

If a full-time employee works a

split shift in which the second route starts in a different
place from where the first shift ended, the employee receives
twenty minutes of pay in the form of what is called a “swing-on
allowance.”

Part-time employees are not paid for any of the

break time within the split shift.
Some of the daily schedules available start and end at the
same location, and others start and end in different locations.
Once employees complete their last route of the day, their
workday is over and they are free to go home.

Employees do not

need to sign out or report back to the location where they began
work or to any other location.

The MBTA does not pay for any

time after the end of the workday, even for employees that have
to return to their starting point to retrieve their cars or
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belongings before heading home.

Employees occasionally use

their mid-day breaks to move their cars to the location where
their day will end, while others take public transportation,
walk, or carpool to reach their vehicles, their homes, or
wherever their next destination is located.
The Plaintiffs contend that they are owed payment under the
Federal Labor Standards Act (“FLSA”), Pub. L. 75-718, 52 Stat.
1060 (codified as amended at 29 U.S.C. §§ 201 et seq.), the
Portal-to-Portal Act, Pub. L. No. 80-49, 61 Stat. 84 (codified
at 29 U.S.C. §§ 251 et seq.), which amended the FLSA, and the
Massachusetts Wage and Hour Law, Mass. Gen. Laws ch. 151 § 1,
for the time that they spend traveling (1) after their last
route of the day to return to where they started work (“startend travel time”) and (2) during mid-day breaks when the second
part of a split shift requires starting at a location different
from where the first part ended (“split-shift travel time”).
II. ANALYSIS
Under Rule 56, I may only grant summary judgment if there
is no genuine dispute of material fact and if the undisputed
facts demonstrate that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(a); Carmona v. Toledo,

215 F.3d 124, 132 (1st Cir. 2000).

The parties are essentially

in agreement as to the facts that support these motions.

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A.

Start-End Travel Time
The FLSA requires employers to pay employees a minimum

wage, 29 U.S.C. § 206, and to pay overtime for time worked per
week that exceeds forty hours.

Id. § 207.

“Work” is “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.”

Tenn. Coal, Iron & R. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 598 (1944).

See also

Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)(noting that
even active exertion is not required, because a person can be
hired to do nothing).

This includes work “done at least in part

for the benefit of the employer, even though it may also be
beneficial to the employee. ‘The crucial question is not whether
the work was voluntary but rather whether the (employee) was in
fact performing services for the benefit of the employer with
the knowledge and approval of the employer.’”

Secretary of

Labor, U.S. Dep't of Labor v. E. R. Field, Inc., 495 F.2d 749,
751 (1st Cir. 1974)(quoting Republican Publishing Co. v.
American Newspaper Guild, 172 F.2d 943, 945 (1st Cir. 1949)).
The Massachusetts Wage and Hour Law, Mass. Gen. Laws ch. 151, §
1, was “intended to be ‘essentially identical’” to the FLSA.
Mullally v. Waste Management of Mass., Inc., 895 N.E.2d 1277,
1281 (Mass. 2008).

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The Portal-to-Portal Act amended the FLSA, establishing
that regular commuting activities are not compensable.

The Act

states that an employer need not pay for an employee’s “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” or “activities which are preliminary to or
postliminary to said principal activity or activities” if that
travel “occur[s] 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(a).

Department of Labor regulations further clarify that “ordinary
home to work travel” is not compensable work time, regardless
whether an employee “works at a fixed location or at different
job sites.” 29 C.F.R. § 785.35.
Plaintiffs argue that when their shifts begin in one
location and end in another, they should be compensated for the
time that it takes them to travel from the end of their assigned
route back to where they began.

The fact that routes are

designed with different start and end points is undisputedly for
the convenience of the MBTA, not of its employees.

It is also

undisputed that once an employee ends the last scheduled route
of a workday, the employee is not required to do any work for

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the MBTA and is not required to report back to the starting
point to clock out or for any other reason.
The Plaintiffs contend that the time spent traveling from
the end of a route back to the start cannot be considered workto-home travel, because employees often have to return to the
starting point to retrieve their cars before heading home.

They

point out that MBTA employees often report for work before or
finish work after the times that the MBTA is running and
therefore cannot rely entirely on public transportation.

The

MBTA counters that it does not require employees to drive to or
from work, and that once an employee’s final route ends, the
employee is free to go wherever and do whatever she wishes with
her time.

The MBTA argues that there is nothing about the fact

that an employee’s evening commute may be longer or shorter than
the same employee’s morning commute that makes that commuting
time compensable.
Traditional commuting time is plainly excluded from the
FLSA by the Portal-to-Portal Act.

When there is no clear line

between the end of an employee’s work and the beginning of that
same employee’s commute, the touchstone is the language of the
Portal-to-Portal Act distinguishing between an employee’s
“principal activity” and non-principal preliminary or
postliminary activity.

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The delineation between principal activity and nonprincipal travel time has been analyzed by a number of federal
courts in the context of jobs for which employees travel to
multiple job sites.

For example, in Kavanagh v. Grand Union

Co., Inc., 192 F.3d 269 (2d Cir. 1999), the plaintiff was a
refrigerator and utility mechanic who was employed to provide
mechanic services at over fifty Grand Union stores in
Connecticut and New York, including some in upstate New York.
He was not paid for the time he spent driving to the first site
to which he was assigned or the time he spent driving back from
the site at which he ended his workday.

Due to the nature of

the job and the geographic scale that he was assigned to cover,
he often spent multiple hours per day in unpaid travel.

The

Second Circuit held that this travel was non-compensable
regardless of the large distances traveled, and found that the
fact that Grand Union benefited from being able to assign a
single employee to cover such a large geographic area did not
change the calculus.

Id. at 273.

The Second Circuit further

held that the term “normal travel” in the context of the
Department of Labor Regulation that provides, “Normal travel
from home to work is not worktime,” 29 C.F.R. § 785.35, “does
not represent an objective standard . . . Instead, it represents
a subjective standard, defined by what is usual within the
confines of a particular employment relationship.”
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Id. at 272.

In Rutti v. LoJack Corp., 596 F.3d 1046 (9th Cir. 2010),
the plaintiff traveled around in an employer-owned vehicle to
customer’s cars, where he installed and repaired theft
protection systems.

He was paid from the time that he arrived

at the first job site at the start of the workday to the time he
left the last job site at the end of the workday.

The court

held that his travel time before the first job site and after
the last job site of the day was not compensable under federal
law (although it was found compensable under California state
law).

Id. at 1051-54, 1061.

Similarly, in Baker v. GTE North, Inc., 110 F.3d 28, 29-31
(7th Cir. 1997), plaintiff electricians could either pick up an
employer-owned vehicle at a central location before taking it to
work sites or could keep the vehicle at their homes.

Employees

were compensated only for the time between their arrival at the
first work site and their completion at the last work site.
at 29.

Id.

The Seventh Circuit held that the other travel time was

not compensable under federal law.

Id. at 30.

The Massachusetts case that mostly closely analyzes the
distinction between preliminary or postliminary work and
principal activity is Dooley v. Liberty Mutual Ins. Co., 307 F.
Supp. 2d 234, 247 (D. Mass. 2004).

In Dooley, Judge Keeton held

as a general rule, in accord with extensive case law from other
circuits, that “commuting is not a principal activity.”
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Id. at

246.

The decision carefully distinguishes between home-to-work

travel undertaken after employees began their principal
activities at home and home-to-work travel by employees who
conducted no principal activity at home.

Id. at 244-45.

Compensation was required for the home-to-work travel of the
first group but not for that of the second.

Id.

Some cases pose factual questions about the nature of an
employee’s “principal activity” and whether the travel activity
is part of that.

In E.R. Field, 495 F.2d 749, the First Circuit

upheld a district court’s findings after a non-jury trial that
an electrician who drove an employer’s vehicle containing tools
and other workers from the shop to site visits and back should
be compensated for the travel time to and from the shop and the
various sites.

The Court held that the Portal-to-Portal Act

exception to compensation does not reach “any work of
consequence performed for an employer,” and that the district
court’s factual findings that the truck the plaintiff drove to
and from the shop was used as an integral and indispensable
function of the employer’s business precluded coverage of the
Portal-to-Portal Act to the travel time at issue in the case.
Id. at 751 (quoting Department of Labor Regulation, 29 C.F.R.
§ 790.8(a)).
In the case before me, however, there is no factual dispute
about the activity of MBTA employees after the completion of
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their final route of the day; employees are completely free to
go wherever they want and they are not required to check out or
return any equipment to their starting point.

MBTA employees

plainly do not engage in any principal activity after completing
their final route of the day.
Plaintiffs argue that the cases discussed above, in which
workers are not compensated for the time they spend traveling
after they complete their principal activity, differ from their
situation, because in the cases discussed above the workers had
immediate access to a vehicle at the end of the workday.

In

contrast, the MBTA workers who end their routes in a location
different from where they started necessarily end their route on
foot because their car cannot be at both locations at once.

The

plaintiffs do not, however, provide any support for their
contention this is a distinction that makes a difference or that
an employee’s need to travel to get to her car before driving
home is any different than any employee’s commute that is more
difficult or inconvenient in one direction than the other.

The

inconvenience or difficulty of a commute does not provide an
exception to the Portal-to-Portal Act.

See, e.g., Kavanagh, 192

F.3d 269.
There are two cases concerning FLSA claims by transit
employees that more closely parallel the facts in this case.
The first is United Transp. Union Local 1745 v. City of
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Albuquerque, 178 F.3d 1109, 1120-21 (10th Cir. 1999).

In

Albuquerque, city bus drivers sued the city under the FLSA,
seeking compensation for their split shifts, which will be
discussed further below in Section II.B. and for time spent
traveling on city-operated shuttles to and from their first or
last bus route of the day.

The Tenth Circuit held that the

undisputed evidence showed that employees were free to go home
any way they chose after their last assignment, and that time
spent shuttling to or from the first and last bus route of the
day is “classic commuting-to-work time, excluded from
compensation by the Portal-to-Portal Act.”

Id. at 1120.

The

court further stated that the fact that the employee’s car is
not available at the relief point where the employee ends work
for the day does not transform this travel from commuting time
into compensable time.

Id. at 1120-21.

The court concluded its

analysis by stating: “While it may be more awkward or
inconvenient to arrange for transportation to and from work
where the employees, like the drivers here, may begin or end
their work day at diverse locations, such awkwardness or
inconvenience does not change an otherwise non-compensable
commute into compensable work time.”

Id. at 1121.

In contrast, in Gilmer v. Alameda-Contra Costa Transit
Dist., 2010 WL 289299 (N.D. Cal. Jan. 15, 2010), Judge Wilken of
the Northern District of California found start-end travel time
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to be compensable for bus drivers employed by the Alameda-Contra
Costa Transit District.

Judge Wilken determined that start-end

travel time is different from work-to-home commute time because
the transit workers “do not voluntarily choose to end their runs
at a different location from where they began,” but rather are
compelled to do so by the defendant’s scheduling arrangements.
Id. at *6.

The court concluded, “[a]bsent fortuitous

circumstances, the employees must spend time returning to their
starting point before beginning their commute home.
normal commute time.”

This is not

Id.

Plaintiffs urge me to distinguish the outcomes in these two
cases based on the relative sizes of the transit systems
involved.

The transit system of the City of Albuquerque was

significantly smaller than that of Alameda-Contra Costa, which
in turn is significantly smaller than the MBTA system at issue
here.

By their reasoning, the MBTA’s even larger and more

complex system means that I should be even more likely to find
start-end travel time compensable.

I do not find the relative

sizes of the transit systems to be a material factor in my
analysis, nor a helpful way to distinguish between these two
cases.

Rather, the difference in outcome is more accurately

traced to the reasoning used in each.

The reasoning of Gilmer,

2010 WL 289299 *6,7, is rooted in the outlier idea that
employees are not engaged in their ordinary work-to-home travel
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when their circumstances require them to travel in a way that is
not effectively voluntary and does not directly benefit
themselves.
The idea of voluntariness as a necessary component of
ordinary work-to-home travel time has been explicitly rejected
by some courts, see, e.g., Grifin v. S & B Engineers and
Constructors, Ltd., 507 Fed. App’x. 377, 383-84 (5th Cir.
2013)(per curiam)(finding commuting time non-compensable even
where construction workers were required to take employer buses
to worksite), despite the fact that the language of
voluntariness is often used to bolster courts’ conclusions that
that no work occurs during travel time, see, e.g. Vega v.
Gasper, 36 F.3d 417, 425 (5th Cir. 1994)(holding that farm
workers who voluntarily choose to ride employer’s bus to and
from field were engaged in noncompensable travel).

The idea of

voluntariness is also not found in the Portal-to-Portal Act
itself.
Gilmer’s focus on voluntariness rests on language from the
Supreme Court decision Tennessee Coal, which held that the
travel at issue in that case was “not primarily undertaken for
the convenience of [the employees] and bears no relation
whatever to their needs.”
321 U.S. at 599).

Gilmer at *6 (quoting Tennessee Coal,

While the Supreme Court in Tennessee Coal did

find travel by miners within a mine compensable in part based on
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the fact that it is done for the benefit of the employer, not
the employee, it also relied heavily on the dangers and
exertions required to travel in mine shafts, a circumstance
absent here. 2

In any event, Tennessee Coal was decided before

the passage of the Portal-to-Portal Act in 1947.

The language

from Tennessee Coal about whether travel through a mine is work
within the meaning of the FLSA is not instructive regarding the
exception later carved out of the FLSA through the Portal-toPortal Act, which was the Congressional response to the Court’s
treatment of travel time in wage and hour law.
Contrary to the decision in Gilmer, I find that the proper
inquiry to determine the applicability of the Portal-to-Portal
Act turns not on employee voluntariness or convenience, but on
whether the start-end travel occurs after the completion of the
MBTA employees’ principal activity.

Plaintiffs’ principal

activity is operating MBTA vehicles in service of the transit
system.

The parties agree that the plaintiffs are not required

by the MBTA to return to their starting location at all, let

2

I note that the MBTA contends that even if I were to consider
voluntariness, the evidence shows that the MBTA employees pick
their routes and that therefore the decision to choose a route
with an ending location different from the start is a voluntary
choice. The MBTA marshalls statements in the plaintiffs’
declarations and responses to interrogatories, showing the
various criteria that employees use to pick their routes,
including the routes with the earliest end times, the routes
with the most convenient work, and routes the employee doesn’t
mind driving.
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alone for any reason related to their principal activity.

I

conclude that the Portal-to-Portal Act excludes start-end travel
time from hours worked under the FLSA.
B.

Split-Shift Travel Time
Plaintiffs next contend that they should be compensated for

split-shift travel time.

Split shifts are schedules in which an

employee is assigned to a first route, followed by a break, and
then a second route.

Split-shift travel time is the time it

takes to travel from the end location of a first route to the
starting point of a second route during a mid-day break.

Full-

time employees who have to travel during split-shift breaks are
currently compensated for twenty minutes of that travel as
“swing-on time,” but they are not compensated for the time that
they spend traveling in excess of twenty minutes.

Part-time

employees are not paid at all for travel that occurs during
these breaks.
Split shifts result in mid-day breaks, some of which are
several hours long.

While the summary judgment record includes

limited individualized information about the plaintiffs’
schedules, the parties agree that since the start of 2009, the
average mid-day break periods for the plaintiffs before me
ranged from sixty-one minutes for Platiniff Spencer to two hours
and thirty-one minutes for Plaintiff Hogan.

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The summary

judgment record does not break these numbers down further by
quarter.
The FLSA, as clarified through the Department of Labor
regulations, counts time traveling that is “part of [an
employee’s] principal activity, such as travel from job site to
job site during the workday,” as hours worked.

29 C.F.R.

§ 785.38; see also Dooley, 307 F. Supp. 2d at 245 (travel
between home and off-site location is compensable when work is
conducted at home, because this is the same as travel between
two worksites).
The travel required of employees during the split-shift
break from the end of a first route to the beginning of the
second is done at the direction of the MBTA to accommodate the
MBTA’s schedule.

The employees are permitted to undertake that

travel in any manner that they choose and at any point during
the break, so long as they are at the starting point of the
second route in time to operate the MBTA vehicle to which they
are assigned.

The plaintiffs do not seek compensation for the

entire break period, during which they acknowledge “[e]mployees
are free to do whatever they wish and to go wherever they wish .
. . so long as they report to work on time after their break.”
The question presented by the summary judgment motions is
whether travel time required by the MBTA to take place during an
otherwise non-compensable break is compensable.
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The FLSA and Department of Labor regulations do not
directly address travel time that occurs during a break.

At

least two possible analogies present themselves in this case.
As to the first, the MBTA urges me to consider the split-shift
break like a “bona fide meal period,” a break for purposes of
eating regular meals that is not considered worktime under the
FLSA.
1.

29 C.F.R. § 785.19.
“Meal Break” Analogy

While the Department of Labor regulations state that an
“employee must be completely relieved from duty” for a meal
period to be bona fide and therefore uncompensated, id., this
rule has not been followed by the majority of circuits.

Harris

v. City of Boston, 253 F.Supp.2d 136, 143 (D. Mass.
2003)(explaining that the majority of circuits draw on the
Supreme Court’s definition of work from Tennessee Coal, 321 U.S.
at 598, as being “primarily for the benefit of the employer” in
determining whether a break must be compensated).

The majority

of circuits, and judges of the District of Massachusetts, have
determined that a meal period is bona fide unless “an employee
predominantly spends the time performing activities for the
employer’s benefit.”

Botero v. Commonwealth Limousine Service,

Inc., 2014 WL 1248158 (D. Mass. March 25, 2014)(quoting Harris,
253 F.Supp.2d at 143-44 (explaining that this standard has been

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adopted by at least the Fourth, Fifth, Sixth, Seventh, and
Eighth Circuits)).
Limited employment restrictions or impositions on an
employee’s time and behavior during a meal break may not affect
the unpaid nature of a meal break.

For example, in Mitchell,

745 F.3d at 741, Sepulveda v. Allen Family Foods, Inc., 591 F.3d
209, 216 n.4 (4th Cir. 2009), and Castaneda v. JBS USA, LLC,
2014 WL 1796707 at *4 (D. Colo. May 6, 2014), courts held that
limited time spent during lunch breaks “donning and doffing” or
changing out of protective clothing did not make the meal time
compensable. 3

The MBTA argues that, similarly, some limited

3

Many of the cases about donning and doffing concern whether
employees can collectively bargain away the right to be
compensated for certain activity. As a general rule, the
protections of the FLSA cannot be bargained away or waived, but
there are specific sections, including 29 U.S.C. § 203(o), which
modified the FLSA to permit compensation for changing clothes to
be modified by custom, practice, or the terms of a collective
bargaining agreement, at least at the beginning or end of each
workday. In this case, the MBTA argues that the plaintiffs are
trying to receive compensation for break time that was not
compensated under the CBA and suggest that this is improper.
They have not pointed, however, to any FLSA amendment or
exception that would permit a union to bargain away compensation
for travel that is properly compensated under the FLSA. The
MBTA cites Castaneda, 2014 WL 1796707 in support of its
argument, but in Castaneda, Judge Matsch pointed to the CBA as
evidence that the meal break was “bona fide” despite the need to
don and doff clothing, not as evidence that the CBA in any way
modified the employees’ rights under the FLSA.
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obligation to travel during a split-shift break should not mean
that the split-shift travel time must be compensated.
After considering the “bona fide meal break” cases and
regulations, I do not find this analogy to be especially
helpful.

In the meal break cases, plaintiffs claimed that the

entire break should be compensated due to some work-related
activity that they were required to perform during part of the
break.

In addition, the meal break cases concern either

incidental or occasional work.

See, e.g., Harris 253 F.Supp.2d

at 145 (plaintiffs were on-call, but still able to enjoy their
mealtime); Sepulveda, 591 F.3d at 216 n. 4 (plaintiffs did not
need to be compensated for the brief time it took to don and
doff protective gear).

For those situations, the predominance

test, which considers whether the break as a whole still permits
the employee to “comfortably and adequately pass[] the
mealtime,” makes sense as an assessment of whether the employee
is able to make use of the meal break.
In contrast, in this case, the question whether the travel
that employees are required to undertake during the split-shift
break is predominant relative to the free time during the break
is much less helpful.

First, the plaintiffs in this case are

not seeking compensation for the entire break period, but rather
solely for the time they spend traveling.

Second, the lengths

of the breaks in this case are significantly larger than the
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often half-hour breaks discussed in the meal break cases.
Third, an employee required to travel during a split-shift break
is required to do so regularly throughout the entire quarter for
which she is assigned to that schedule.

This makes the travel

much more than merely incidental work that might occasionally
interfere with a meal break.
2.

Employee Waiting Time Analogy

I find that a more helpful analogy is to the compensable
and non-compensable parameters of employee waiting time.

The

regulations explain, “Periods during which an employee is
completely relieved from duty and which are long enough to
enable him to use the time effectively for his own purposes are
not hours worked.”

29 C.F.R. § 785.16.

Under the FLSA, the

distinction between compensable and non-compensable waiting
times is whether an employee “waited to be engaged” or is
“engaged to wait.”

See Skidmore v. Swift, 323 U.S. 134, 137

(1944).
The regulations provide a helpful illustration of how the
obligations on the worker during the waiting time can affect
whether time is compensable or non-compensable.
A truck driver who has to wait at or near the job site
for goods to be loaded is working during the loading
period. If the driver reaches his destination and
while awaiting the return trip is required to take
care of his employer's property, he is also working
while waiting. In both cases the employee is engaged
to wait. Waiting is an integral part of the job. On
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the other hand, for example, if the truck driver is
sent from Washington, DC to New York City, leaving at
6 a.m. and arriving at 12 noon, and is completely and
specifically relieved from all duty until 6 p.m. when
he again goes on duty for the return trip the idle
time is not working time. He is waiting to be engaged.
29 C.F.R. § 785.16
While this illustration presents the distinction as an allor-nothing proposition, I see no reason why a truck driver who
spent the first hour of the six-hour period waiting for goods to
be loaded and then has five hours of free time would not be
compensated for his waiting during the first hour even if not
compensated for the idle time of the next five.
In Albuquerque, the panel majority divided compensable and
non-compensable periods of a mid-day break in just this manner.
The court held that there was a “meaningful distinction” for
purposes of § 785.16 between the time spent traveling from the
end of one route to the beginning of a second route, and “the
remainder of the drivers’ split shift periods, during which they
have an extended block of time in which to pursue, as most
testified they do, purely personal pursuits.”

178 F.3d at 1119.

The court in Albuquerque held that the split-shift travel time
was compensable. 4 See also Gilmer, 2010 WL 289299 at *8(quoting

4

In Albuquerque, however, the lower court found that only
transit on city-provided shuttles was compensable. The
employees did not appeal the ruling that independent travel was
not compensated. Consequently, the Tenth Circuit did not
address independent travel during split shifts in its decision.
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Albuquerque and similarly finding split-shift travel time
compensable).
While I have not come across other cases that explicitly
ascribe compensable time to only a portion of otherwise noncompensable time, other courts often implicitly acknowledge that
work that follows or is imbedded in otherwise non-compensable
time is nonetheless compensable.

See, e.g., Rutti, 596 F.3d at

1061(principal activity conducted after the end of the workday
is compensable, although the intervening commuting time was not;
because the activity could have been done at any time, the
compensability of the work did not affect the non-compensability
of the commuting time).

There is nothing about the fact that

the travel time occurred during an otherwise non-compensable
break that requires me to analyze the compensability of the
travel time any differently than any other compensable or noncompensable time is analyzed.
3.

Break Time as Portal-to-Portal Act Commuting Time

The MBTA also raises an alternative theory, arguing that
the MBTA properly refused to compensate for travel between
routes because the two shifts worked by employees during split
shifts are, in effect, two separate workdays.

If the two shifts

are separate workdays, then the Portal-to-Portal Act, as

See Albuquerque, 178 F.3d at 1118, n.12. All of the split-shift
travel at issue in the case before me is independent travel.
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discussed above, would apply to travel preliminary or
postliminary to the employees’ principal activity.

If the

shifts are part of the same day, however, the Portal-to-Portal
Act has “no effect on the computation of hours that are worked
‘within’ the workday.”

IBP, Inc. v. Alvarez, 546 U.S. 21, 28

(2005).
In Mitchell v. JCG Indus., Inc., 745 F.3d 837, 839-40 (7th
Cir. 2014), the Seventh Circuit suggested that a lunch break
could divide a standard workday into two separate workdays for
purposes of the FLSA.

Mitchell considered whether compensation

was required under the FLSA for time spent changing clothes
during a lunch break, or whether this could be left to the
process of collective bargaining.

Writing for the majority,

Judge Posner wrote that “workday” has a fluid meaning that could
include a four-hour shift separated from another four-hour shift
by a meal break.

He also determined that such an understanding

was appropriate given the facts of that particular case.
While the court in Mitchell is correct that the term
“workday” has an elusive meaning, I do not find helpful or
persuasive the conclusion in that case that a break as brief as
a meal could delineate a workday.

The Department of Labor

regulations define “workday” to mean “in general, the period
between the commencement and completion on the same workday of
an employee’s principal activity or activities.
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It includes all

time within that period whether or not the employee engages in
work throughout all of that period.”

29 C.F.R. § 790.6(b).

This regulation reflects the Supreme Court’s prior decisions
adopting the “continuous workday rule.”

IBP, 546 U.S. at 29.

The regulations specify that breaks, including lunch and rest
breaks, as well as periods in which employees do not engage in
work, do not interrupt a single workday.

As Judge Posner

recognized in Mitchell, that decision represents an “exception.”
Mitchell, 745 F.3d at 840.

If I were to find that the split

shift schedule results in two separate workdays, this
exceptional reading of the statute and regulations would swallow
the rule, not to mention result in over ten workdays a week for
any MBTA employee working split shifts each day.
The precise bounds of the term “workday” are difficult to
discern.

While the majority in Albuquerque, 178 F.3d 119,

suggested that any definition of workday other than a 24-hour
period is unworkable, Judge Briscoe noted in dissent that such a
rule would result in illogical applications to workers who work
irregular hours, with evening hours one day and morning or
afternoon hours the next day.

Id. at 1124.

I agree, and note

that similar problems would arise with medical professionals and
others who regularly work shifts longer than twenty-four hours
at a time.

He proposed a more flexible definition of a workday

as being “a period of work (i.e., a period in which an employee
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is engaged in his or her principal activities) separated on
either side by a sufficient amount of off-duty time (e.g., sixeight hours).”

Id. at 1125.

A more flexible definition seems,

to me, to be appropriate, although given the complexity of
people’s working lives, even the definition proposed by Judge
Briscoe will run up against further challenging examples. 5

To

resolve this matter, I need not determine the precise bounds of
a “workday” in a manner that applies to all employment
situations.

For present purposes, I find that the split shifts

worked by the plaintiffs occur in a single workday, and
therefore that the Portal-to-Portal Act does not apply.
The two cases that have considered compensation of splitshift travel time for transit employees have both found that
travel time during split shifts is compensable.

See

Albuquerque, 178 F.3d 1110; Gilmer, 2010 WL 289299.
resolved this issue on summary judgment.

Both

Here, despite the

parties’ apparent agreement about the facts presented in the
Defendant’s Statement of Undisputed Facts pursuant to Local
Civil Rule 56.1, I am not able to resolve these split-shift
5

For example, at oral argument the plaintiffs mentioned that
part-time MBTA employees may have seven- or eight-hour breaks
between their split shifts. I am not considering at this time
any non-Plaintiff employees, and the plaintiffs in this case
have not had such extended breaks. Any further consideration of
the significance of the length of the break would likely involve
close analysis of the length of breaks for individuals other
than the named plaintiffs, as well as the customs and practice
of the MBTA. That must await further development of this case.
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travel claims on summary judgment.

The summary judgment record

contains significant gaps about the individual travel time and
break schedules of the plaintiffs as well as information related
to the custom and practice of the MBTA that prevent me from
determining as a matter of law whether the travel time of the
plaintiffs in this case during their split-shift breaks is
compensable or non-compensable.

In the absence of specific

information about the break and travel times of the plaintiffs
in this case, I cannot determine whether there was any violation
of the FLSA or whether any travel time beyond that for which the
plaintiffs were compensated may be de minimis in individual
cases.
III. CONCLUSION
For the reasons set forth above, I conclude that start-end
travel time is excluded from compensable work time under the
FLSA and the Portal-to-Portal Act.

I cannot determine on the

record before me whether any of the plaintiffs’ split-shift
travel time is compensable under the FLSA.

Accordingly, I GRANT

Defendant’s Motion for Summary Judgment (Doc. No. 44) as to
Count II which concerns start-end travel time and DENY the
motion as to Count III which concerns split-shift travel time; I
DENY Plaintiffs’ Motion for Summary Judgment (Doc. No. 51) in

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its entirety.

As a housekeeping measure, I order Count I, a

separately stated count under the Portal-to-Portal Act DISMISSED
as duplicative of Counts II and III under the Fair Labor
Standards Act, of which the Portal-to-Portal Act is simply an
amendment.
The parties are directed to confer and submit a joint
status report by April 17, 2015, outlining a proposal for moving
this case forward to final judgment consistent with this
memorandum and order.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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