Aguilar et al v. Management & Training Corporation
MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 160 Defendants' Motion for Summary Judgment on Liability (First Amended Complaint) and DENYING 208 Opposed Motion to Supplement Record with New MTC Timekeeping Policy. (mag)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARISELA AGUILAR, et al.,
Civil No. 16-00050 WJ/GJF
MANAGEMENT & TRAINING
CORPORATION d/b/a MTC,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY
ORDER DENYING PLAINTIFFS’ OPPOSED MOTION FOR LEAVE TO
SUPPLEMENT A NEW TIMEKEEPING POLICY ISSUED BY DEFENDANT
THIS MATTER comes before the Court upon Defendant’s Opposed Motion for
Summary Judgment on Liability, filed July 21, 2017 (Doc. 160). Having reviewed the parties’
pleadings and the applicable and controlling law, the Court finds that Defendant’s summary
judgment motion is well-taken and, therefore, is granted with respect to Plaintiffs’ claims
asserted under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”) and the New
Mexico Minimum Wage Act, N.M.S.A. §§ 50-4-1 to 50-4-33 (“NMMWA”).
This is a collective/class action lawsuit filed by current or former employees of
Defendant Management and Training Corporation (“Defendant” or “MTC”) who claim they
were not paid for some of their hours worked on assignment for MTC at the Otero County Prison
Facility near Chaparral, New Mexico. The lawsuit asserts claims for unpaid wages and overtime,
as well as other statutory damages and the recovery of attorneys’ fees, under the Fair Labor
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Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”) and/or the New Mexico Minimum Wage Act,
N.M.S.A. §§ 50-4-1 to 50-4-33 (“NMMWA”). Plaintiffs contend they should be compensated
for various pre- and post-shift activities which they argue are compensable, namely (a) waiting at
the prison, (b) clearing security, (c) taking and returning equipment, and (d) meeting and
reporting to other detention officers. (First Am. Compl. ¶¶ 20 - 22.) In addition, Plaintiffs accuse
MTC of unlawful “rounding” practices with respect to their compensation.
The issues must be considered in the context of the challenged activities performed by the
detention officers to and from work. Plaintiffs claim that they should be paid for the following
activities to and from their posts:
Parking Lot to Outside Double Gate to Prison
Officers walk through an outside double gate to enter the prison on their
way from the parking lot. Once inside, they walk to metal detector.
Clearance through metal detector where the officers empty their pockets
and take off their jackets for a security clearance.
Pre-Shift Assignment, Briefing and Paperwork
After passing through the metal detector, the officers receive their post
assignments. Defendants acknowledge that in addition to post assignments,
officers may receive additional information about what is happening at the
assigned post, and that this takes an additional one or two minutes. Plaintiffs
describe this additional information as a “pre-shift briefing” which includes a
verbal post assignment, a briefing on operational and security issues and the
distribution of paperwork for most posts. Plaintiffs point out that prior to
December 2016, these activities occurred before clocking in at Time Clock. After
December 2016, the “pre-shift briefing” occurred after clocking in. (See Deft’s
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A few steps after the time clock is the area where officers go to a
fingerprint-activated key box to retrieve keys they’ll need for their shifts. They
then then walk through another set of security doors to central control and the
ID Verification & Equipment Collection
On passing into the central control facility, Officers pass their ID’s to
officers inside the central control who review them, then pass them back through
a different side of the wall. Officers then collect equipment such as pepper spray,
handcuffs and radios from central control, although parties dispute whether all of
the officers are required to pick up equipment. (D’s Fact 18 & response)
Arrival at Post and “Pass-Down”
Once an officer arrives at his post, there is a “pass-down” or overlap
period between the shifts where the officer going off shift can convey information
about the post to the officer coming on. This exchange occurs on the post.
The FLSA does not specifically define “work,” so courts must determine on a case-bycase basis whether an employee's activities are compensable under the FLSA. See Smith v. Aztec
Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir.2006) (citations omitted); 29 C.F.R. § 785.6.
The Department of Labor has adopted the “continuous workday” rule, which means that the
“workday” is generally defined as “the period between the commencement and completion on
the same workday of an employee's principal activity or activities.” § 790.6(b). IBP, Inc. v.
Alvarez, 546 U.S. 21, 28 (2005) (“Alvarez”).
The term “principal activity or activities”
embraces all activities which are “an integral and indispensable part of the principal activities.”
Alvarez, 546 U.S. at 21(“Alvarez”). An activity is integral and indispensable if it is an “intrinsic
element” of the employee's principal activities, and one with which the employee cannot
dispense if he or she is to perform his or her principal activities. See Integrity Staffing Solutions,
Inc. v. Busk, ––– U.S. ––––, 135 S.Ct. 513, 514 (2014), cited in Landry v. Swire Oilfield Servs.,
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L.L.C., No. CIV 16-621 JB/LF, 2017 WL 1709695, at *24 (D.N.M. May 2, 2017)); Baker v.
Barnard Const. Co., 146 F.3d 1214, 1216 (10th Cir. 1998) (holding that if an activity is “an
integral and indispensable part of the principal activities for which covered workmen are
employed,” it constitutes a compensable principal activity rather than a non-compensable
preliminary or postliminary task).
The FLSA was amended by the Portal-to-Portal Act to exclude normal home to work
travel from the scope of paid time under the FLSA, as well for any activities that are merely
“preliminary to or postliminary” to their principal activities at work. 29 U.S.C. § 254(a); 29
C.F.R. § 785.35.
The Portal-to-Portal Act’s amendment, however, did not change earlier
descriptions of the term “work.” In Alvarez, the Supreme Court clarified that time spent after the
beginning of the first principal activity, including time spent walking, is not affected by §4(a) of
the Portal-to-Portal Act, 29 U.S.C. §254(a), and is therefore compensable. 546 U.S. at 28
(2005). In Steiner v. Mitchell, 350 U.S. 247, 254 (1956), the Supreme Court found that Congress
passed the Portal-to-Portal Act still intending for an employee’s activities to fall within the
protection of the FLSA “if they are an integral part of and are essential to the principal activities
of the employees.”
Thus, activities performed either before or after the regular work shift are still
compensable “if those activities are an integral and indispensable part of the principal activities
for which covered workmen are employed.” Id. at 256. (emphasis added). The Supreme Court
further clarified this rule in Alvarez, explaining that any activity that is “integral and
indispensable” to a “principal activity” is itself a “principal activity” and is thus compensable
under the FLSA. Alvarez, 126 S. Ct. at 525. Further, where an employee’s activity “takes all of
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a few seconds and requires little or no concentration,” then the activity is “properly considered
not work at all.” See, e.g., Landry v. Swire Oilfield Servs., L.L.C., No. CIV 16-621 JB/LF, 2017
WL 1709695, at *23 (D.N.M. May 2, 2017) (citing Smith V Aztec Well Servicing Co., 462 F.3d
1274 (10th Cir. 2006)).1
Under the FLSA, then, a “workday” begins after the beginning of the first principal
activity, and activities after that point are compensable and not affected by §4(a) of the Portal-toPortal Act. In other words, any pre or post shift “principal activity” triggers coverage under the
FLSA for other activities that occur after that point. This is why the determination of which (if
any) of the activities at issue are considered “principal activities” under the FLSA is so critical.
Any activity, even time spent walking, is excluded from the scope of the Portal-to-Portal Act and
is compensable as long as the activity occurs after the beginning of the employee’s first principal
activity and before the end of the employee’s last principal activity. IBP, Inc. v. Alvarez, 546
U.S. 21, 37 (2005). Thus, if any of the below activities are found to be compensable, that
activity would trigger the “continuous workday.” See, e.g., Landry v. Swire Oilfield Servs.,
L.L.C., No. CIV 16-621 JB/LF, 2017 WL 1709695, at *23 (D.N.M. May 2, 2017) (if plaintiffs’
first principal activity—loading their trucks with protective gear—occurred before traveling to
the job site, then the plaintiffs’ travel time constituted compensable work) (citing Smith v. Aztec
Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006)).
Plaintiffs also claim that they have lost time for which they should be compensated due to
Defendant’s “rounding” policy, which Plaintiffs claim is unlawful. “Rounding” is addressed in
See also Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014) (noting that there may be some activities such as
“changing clothes” and “washing up or showering” would be considered “preliminary” or “postliminary” activities
when performed outside the workday, but in certain situations could be “so directly related to the specific work the
employer is employed to perform that [they] would be regarded as an integral part of the employee’s “principal
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29 CFR §785.48 as a lawful method for averaging start and stop work times where time clocks
are used. The practice of “computing working time” by “rounding” is accepted and lawful
“provided that the practice “averages out so that the employees are fully compensated for all the
time they actually work” and so that “it will not result, over a period of time, in failure to
compensate the employees properly for all the time they have actually worked.” §785.48(b).
Summary judgment is appropriate if “there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the initial burden of showing an absence of evidence to support the nonmoving
party’s case. Once that burden is met, the nonmoving party must put forth specific facts showing
that there is a genuine issue of material fact for trial; he may not rest on mere allegations or
denials in his own pleadings. A fact is “material” if, under the applicable substantive law, it is
“essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248).
When applying this standard, the court examines the record and makes all reasonable inferences
in the light most favorable to the non-moving party. Id. The movant bears the initial burden of
establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); Cross v. The Home Depot, 390 F.3d 1283, 1284-85 (10th Cir. 2004).
Summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure
“designed to secure the just, speedy and inexpensive determination of every action.” Celotex
Corp., 477 U.S. at 327 (quoting Fed. R. Civ. P. 56).
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Whether an activity is preliminary or postliminary to principal activities for purposes of
§254(a)(2) of the Portal-to-Portal Act is a mixed question of law and fact because the precise
nature of the employee's duties is a question of fact, while application of the FLSA to those
duties is a question of law. Baker v. Barnard Const. Co., 146 F.3d 1214, 1216 (10th Cir. 1998).
However, where there are undisputed facts as to whether a certain activity is a compensable
principal activity or a non-compensable preliminary or postliminary task, the Court may
appropriately grant summary judgment. Renfro v. City of Emporia, 948 F.2d 1529, 1536 (10th
Cir. 1991) (granting summary judgment by relying on undisputed facts); cmp., e.g., Brubach v.
City of Albuquerque, 893 F.Supp.2d 1216 (D.N.M.,2012) (issues existed as to whether city
“employed” security guards for five-minute period prior to start of their shifts, summary
judgment denied as to whether that time was compensable “work” within meaning of FLSA); see
also Carter v. Panama Canal Co., 314 F.Supp. 386, 391 (D.C.D.C. 1970) (whether the activities
were such an integral and indispensable part of the employee’s principal activity as to be
compensable is a question of fact); Dunning v. Q. O. Ordinance Corp., 233 F.2d 902, 903 (8th
Cir. 1956) (question whether activities of powder line workers in changing clothes before and
after work and in showering were such integral and indispensable part of principal activities so
that they were compensable, was question of fact).
Defendant contends that Plaintiffs are attempting to circumvent the Portal-to-Portal Act
in trying to claim payment for activities on their way to and from their posts because
compensable work begins and ends at an employee’s post and that activities carried out on their
way to and from an officer’s post are not compensable. Defendant offers three grounds for
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(1) Plaintiffs’ walk time to/from post and the time spent on preliminary and postliminary
activities is not compensable because an officer’s workday begins after pass-down is given by
the previous shift, and ends when pass-down begins, on the arrival of the next shift;
(2) Any discrepancy between what Plaintiffs are paid and their scheduled start/end times
(the shift times for which MTC pays them) is de minimis; and
(3) Plaintiffs’ claims are barred due to their failure to use MTC’s time adjustment
process, which is a system for correcting compensation errors.
MTC’s Alleged Unlawful “Rounding Practice”
As a preliminary matter, the Court finds that Plaintiffs’ theory of unlawful “rounding”
can be dispensed with in order to clarify the real issues in this case. Plaintiffs contend that
Defendant’s unfair rounding practices violate the FLSA and the NMMWA and further claim that
“rounding” violations are not subject to a de minimis defense as a matter of law because MTC
uses an up-to-the minute payroll system which precisely records work start-and stop-times.
MTC contends that this case is not about “rounding” as that term of art is used in the
regulations and case law. MTC describes its practice as a “ten-minute adjustment window,” (see
Doc. 160 at 2) which is used because the officers’ eight-hour shifts begin and end at their posts.
Also, because the activities that occur within 10 minutes of the start/end times of scheduled shifts
are not compensable, any so-called “rounding” or averaging affects largely noncompensable
Doc. 160 at 13, n.3.
MTC explains that it is impractical to have time clocks at each of the 40 prison posts, and
so the detention officers use a time clock that is a few steps beyond the metal detector. The time
clock records the actual time that officers swipe in and out, but because the time clock is about
ten minutes away from the various posts, MTC pays its officers based on their shift schedule—as
long as officers clock in or out no more than ten minutes on either side of the scheduled start or
stop time. So, for example, an officer scheduled for the 6:00 a.m. to 2:00 p.m. shift who clocks
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in at 5:58 a.m. and out at 2:05 p.m. will be paid for 8 hours, as will an officer who clocks in at
6:10 a.m. and out at 1:59 p.m. By contrast, an officer on the same schedule who clocks in at
6:12 a.m. and out at 2:11 p.m. will be paid for actual clock time; and an officer who clocks in at
6:02 a.m. but out at 2:11 p.m. will be paid as if the officer worked from 6:00 a.m. to 2:11 p.m.
See Doc. 160 at 13.
Another way of looking at the adjustment window is that MTC pays detention officers for
the full eight-hour shift unless the officer arrives more than ten minutes before the shift begins or
leaves more than ten minutes after the shift ends. Under this practice, an officer is paid for the
total eight-hour shift—whether the officer arrives at post a few minutes early (which means an
officer is not paid for those few minutes) or whether he leaves a few minutes early (in which case
the officer is paid for time he not working).
The practice of “rounding” cannot be reconciled with MTC’s ten-minute adjustment
window; it simply does not apply. “Rounding” is used when calculating increments of work
time, so that actual work time is averaged down or up, depending on the incremental basis used.
In other words, under a true rounding system, employees are working immediately upon
Here, clocking in does not define “work” time; if it did, this lawsuit would have
been easily resolved. Instead, MTC applies its ten-minute adjustment window only to clock
ins/outs within 10 minutes of scheduled “work” shifts. This adjustment therefore does not
reduce the total number of hours an officer has been scheduled to work on his eight-hour shift
unless he is more than ten minutes late to arrive or more than ten minutes early to leave.
Moreover, under the regulations addressing the recording of working time, early or late
clock punching “may be disregarded” where time clocks are used. 29 C.F.R. §785.48(a). The
law recognizes that “[m]inor differences between the clock records and actual hours worked
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cannot ordinarily be avoided but major discrepancies should be discouraged since they raise a
doubt as to the accuracy of the records of the hours actually worked.” Id. MTC’s time adjustment
policy does not lend itself to major discrepancies because it does not affect compensation
start/stop times for scheduled eight-hour shifts, which would be allowed under §785.48(b). If an
officer starts actual work early or leaves late (by less than ten minutes), MTC’s time adjustment
practice may benefit Defendant but it does not reduce compensation for the scheduled eight-hour
The issue in this case is whether an officer should receive additional compensation for
certain activities performed to and from the post, not whether any officer should be paid for a full
eight-hour shift, and so Plaintiffs’ theory of “rounding” practice violations is incongruous with
the non-compensation allegations being made in this case. Therefore, the Court grants Defendant
summary judgment on its position that MTC’s time adjustment policy does not constitute
“rounding” as that concept is used in wage and hour law. Furthermore, the Court will not
consider any of Plaintiffs’ “rounding” argument in subsequent discussions on the issues raised in
Whether Activities Are Not Compensable and Therefore Excluded Under the
Defendant contends that Plaintiffs’ walk time to/from post and the time spent on
preliminary and postliminary activities is not compensable because compensable activities begin
and end at Plaintiffs’ posts after pass-down. The question in this section is whether any of the
challenged activities during that time is compensable as principle activities. Under the FLSA
and the relevant case law, pre-and post- work is compensable as a principal activity only if (1)
The Court discusses the facts presented by both parties in the context of the different activities where they make
the most sense. Since there are tens of thousands of exhibits in this case, Doc. 164 at 2, the Court will identify only
those facts which the Court finds to be relevant to the narrative.
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Plaintiffs were “employed to perform” the work; and (2) the work is integral and indispensable
to the principal activity. Busk, 135 S. Ct. at 519.
The Court has reviewed the considerable amount of materials submitted in connection
with this motion, including Plaintiffs’ numerous additional facts set forth in their response brief.
As a result of the vast amount of material and information presented to the Court in Defendant’s
facts and Plaintiffs’ responses to those facts, none of the evidence cited by Plaintiffs in their
“additional facts” section provides the Court with anything new, much less evidence that creates
a factual dispute.
For example, some of these additional facts are not inconsistent with
Defendant’s facts on the same issues. See Pltffs’ Add’l Facts L, M,O, Z. Other facts can best be
described as legal argument as to whether an activity is compensable. See Pltffs’ Add’l Facts HJ. Still other facts focus on Plaintiffs’ arguments on what they call MTC’s illegal “rounding
policy,” which the Court rejects as an issue in this case. See Pltffs’ Add’l Facts E, XX-ZZ. The
Court’s discussion below therefore focuses on the information and evidence presented through
Defendant’s facts and Plaintiffs’ responses.
Metal Detector Clearance
Defendant contends that walking through the metal detector, which takes from three to
ten or eleven minutes, is not compensable. Deft’s Facts 6-8. Plaintiffs claim there is a genuine
factual dispute as to the amount of time to clear the metal detector, offering numerous
declarations by Plaintiffs to counter the deposition testimony presented by Defendant, but any
time differences turn out to be not only immaterial but ultimately in MTC’s favor.
declarations presented by Plaintiffs remain within the three to eleven minute window stated by
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Immaterial time differences aside, the bigger question is whether clearing the metal
detector can be considered compensable activity because it is integral and indispensable to the
officers’ principal work activity.
Defendant points to the United States Supreme Court’s
decision in Busk, 135 S.Ct. at 514, which held that time spent undergoing and waiting to undergo
security screening is not compensable under the FLSA. See Alvarez, 546 U.S. at 40 (neither
waiting nor walking was a principal activity). Defendant contends that Plaintiffs can perform
their duties without having to go through the security screenings.
In Busk, the security
screenings were not “integral and indispensable” to employees in retrieving products from
warehouse shelves or packaging them for shipment. Busk, 135 S.Ct. at 519. The “integral and
indispensable” test is tied to the productive work that the employee is employed to perform.” Id.
(emphasis in original). Here, the screenings are not tied to the work of detention officers in the
security of prisons, and there are no inmates living where the security screenings take place.
Plaintiffs contend that searching for contraband is part of their essential work function,
and so mandatory clearance through the metal detector is integral and indispensable to their
principal work activity and thus compensable. However, in clearing the metal detector, the
officers are not searching for contraband; rather they themselves are being searched for
contraband—and being searched is not a compensable activity. Plaintiffs attempt to distinguish
Busk by noting that the searches in that case took place after the workday was over as a theft
prevention measure. Plaintiffs conveniently ignore the Supreme Court’s reasoning in Busk,
which expressly found no distinction between pre-shift searches conducted for safety of
employees and those conducted for the purpose of preventing theft post-shift, and that “neither
were compensable under the Portal-to-Portal Act.” 135 S.Ct. at 519. Also, the fact that the
security clearances may be for the employer’s benefit is not dispositive. The Supreme Court
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noted that a “test that turns on whether the activity is for the benefit of the employer is similarly
Because the controlling law establishes that a preliminary security measure such as
walking through a metal detector is not integral and indispensable to the officers’ principal
activity, Defendant is entitled to summary judgment on this issue in that walking through the
metal detector is not compensable work.
Pre-Shift Assignment, Briefing and Paperwork
Near the metal detector, supervisors give the officers paperwork for use on post, and the
officers carry the paperwork in their hands or in a pocket on their walk to their posts. As
supervisors distribute paperwork, they tell officers what their post will be for the day, and for
some but not all Plaintiffs, the supervisors convey basic information about what is occurring on
post, which is described as “pre-shift briefing.” 3 Prior to December 2016 (which is the majority
of time applicable to this case), officers would receive their post assignment and additional
information (where applicable) before clocking in.
In December 2016, MTC changed the
practice to where these activities took place after clocking in. See Doc. 190 at 38-39.
Defendant contends that “pausing briefly and hearing a few words about what is
happening on post, during the walk to that post” is not integral and indispensable to Plaintiffs’
performance of their jobs. Defendant also points out that officers did not always get briefing
with their post assignments. Deft’s Facts 8, 9. Plaintiffs claim that the post assignment, pre-shift
briefing and distribution of paperwork constitutes “work” because the activities “relate[s] to
The term “pre-shift briefing” is used in other cases to refer to the briefing that occurs between shifts and which in
this case is called “pass-down” or “shift overlap.” Bustillos et al v. Bd. Of Cty Commissioners of Hidalgo Cty., No.
15-2213, Order & Judgment (Sept. 14, 2017) (reversing summary judgment granted to county on plaintiff’s claim
that county required her to be at work five minutes before her shift began in order to be briefed by the outgoing
dispatcher, but failed to pay her for that time); see also Brubach et al. v. City of Albuquerque, 893 F.Supp.2d 1216
(fact issue existed as to whether city “employed” security guards for five-minute period prior to start of their shifts
for pre-shift briefing). In this case, “pre-shift briefing” is distinct from the “pass-down” briefing that takes place on
the posts just prior to one shift ending and another starting and will be explored further later in this opinion.
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essential functions” listed on officers’ job description—which is to provide security. Doc. 190 at
16 (Pltffs’ Fact H). Plaintiffs also contend that a supervisor was always present to give out
additional briefing at the metal detector. See Deft’s Facts 8-9 and Pltffs’ resp. thereto. See, e.g.,
Pltffs’ Ex. GG (Ramirez Dep.) at 27:13-25 (information as to any areas under lockdown or any
hospital duties); Pltffs’ JJ (Rodarte Dep.) at 27:3-14, 28:13-23 (“Once you clear the metal
detector, my supervisor will be there”); Pltffs’ Ex. EE (Jauregui Dep.) at 23:23 to 25:6)
(supervisor, lieutenant or sergeant present at metal detector to brief him on the prior shift).
However, the testimony presented by Plaintiffs indicates that only some of the Plaintiffs always
received additional briefing. This testimony does not create any factual dispute even when
viewing the facts favorably to Plaintiffs because, as Defendant notes, MTC does not dispute that
some Plaintiffs testified that a supervisor was always present at the metal detector or that some
officers were always provided additional information.
Plaintiffs claim that Defendant has conceded that what it describes as “pre-shift briefing”
constitutes compensable work by the detention officers. They base this claim on the testimony
of Warden Martinez, who stated that MTC moved the pre-shift briefing further back in the
building to occur after the officers clocked in and that these changes were made in response to
this lawsuit. Pltffs’ Ex. FF at 38:12-20; at 36:20-22 (the change was made “[b]ecause we want
to make sure they clock in and then do their work . . . .”). Plaintiffs view this testimony by
Warden Martinez, who testified as a corporate representative for MTC, as admissions by MTC
that the pre-shift briefing constitutes work and thus was compensable under the FLSA. See Doc.
190 at 39.
The Court finds the Warden’s testimony to be interesting but immaterial. As Defendant
notes, an employer is free to act out of caution or any other reason and simply pay employees for
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actions as to which the law itself would not necessarily require payment. See, e.g., Pabst v. Okla.
Gas & Elec. Co., 228 F.3d 1128, 1136 (10th Cir. 2000) (affirming district court’s denial of
liquidated damages in part because it overcompensated employees by paying them double for
overtime instead of only time and a half and paying them for an hour for an alarm response that
only took five minutes). Warden Martinez is not an FLSA expert, and his statements do not
replace the factual and legal inquiry that must be made here, which is whether the post
assignments and additional information that is provided at the metal detector (either before or
after, depending on the time period) are integral and indispensable to the officers’ principal
The following facts are undisputed: (a) some Plaintiffs encounter a supervisor at the
metal detector and some do not; (b) some Plaintiffs receive only a post assignment at the metal
detector; and (c) other Plaintiffs receive additional information about the assigned post. Based
on these facts and applying relevant law, the Court finds that these activities are
preliminary/postliminary as a matter of law under the FLSA and the Portal-to-Portal Act. First,
learning one’s post assignment is not compensable. It is preliminary to the “productive work the
officers are employed to perform” and simply directing the officers to the location where they are
to perform this work. Busk, 135 S.Ct. at 519 (emphasis in original); see also Carter v. Panama
Canal Co., 314 F.Supp. 386, 392 (D.C.D.C. 1970) (the time required to look for and place a
check mark by a name on the assignment board and a two to fifteen minute walk to a duty station
is negligible and not compensable); Butler v. DirectSAT USA, LLC, 55 F.Supp.3d 793
(D.Md.,2014) (finding that the time technician spent reading e-mails from companies that
provided satellite installation services listing his work assignments for the next day, mapping out
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directions, and prioritizing his routes was not compensable under the FLSA; and that such tasks
were related to technician's commute, not work).
Second, learning the location of the place of performance does not become a
compensable activity merely because the supervisor adds some preliminary information at the
same time about what is happening at the post. It is undisputed that receiving this additional
information takes all of one or two minutes (see Deft’s Fact 9 and Pltffs’ Resp. thereto), and that
it does not always occur.
A much more detailed briefing, described in this lawsuit as a “pass-down,” happens later
on post, as the leaving shift imparts necessary information to the oncoming shift. See Deft’s Fact
11. Plaintiffs claim that the pre-shift briefing encounter is “required” or “mandatory” and that
they cannot effectively of safely do their “mandatory job of guarding inmates” without this
briefing. See Doc. 190 at 38. There is no evidence that MTC requires this encounter or has
made it mandatory, based on Plaintiffs’ own proffered evidence. For example, Plaintiffs offer
the testimony of Carlos Rosales to show that the officers receive a post assignment, paperwork,
and individualized briefing about what happened on the prior shift and about particular inmates
on every shift. See Pltffs’ Ex. KK (Rosales Dep.) at 18:5-12 (there is a sergeant telling him what
his post is after clearing the metal detector). However, Mr. Rosales also states in this same
deposition that there are “sometimes” supervisors telling him what his post is (Ex. KK at 19:1-5)
and that he could not remember the last time there was a supervisor at the metal detector (Ex.
KK at 36-37). Such evidence is hardly the kind that would persuade a fact finder that this preshift briefing is an “integral and indispensable” activity. Further, an activity that is mandatory is
not necessarily sufficient to transform an activity into one that is “integral and indispensable.”
See Busk,135 S. Ct. at 519 (“If the test could be satisfied merely by the fact that an employer
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required an activity, it would sweep into ‘principal activities’ the very activities that the Portalto-Portal Act was designed to address.”). Based on the undisputed facts, the Court finds as a
matter of law that none of the activities at the metal detector—receiving a post assignment, preshift briefing or paperwork—is compensable work under the FLSA.
Collection of Keys and Equipment
A few steps after the time clock is a fingerprint-activated key box. Some of officers
retrieve keys from the box, which can take anywhere from a few seconds to a few minutes, with
a high end of five minutes, depending on whether there is a wait. The officers clip the keys onto
their belts or slip them into their pockets. The keys Plaintiffs carry are on rings approximately
two inches or less to four inches in diameter, with up to twenty standard house key-size keys on
a ring. One key is about six to eight inches long. Some Plaintiffs carry more than one ring. The
rings clip to Plaintiffs’ belts directly or are in a key holder on their belts. Some Plaintiffs choose
to carry the keys in their pockets. See Deft’s Facts 18-20 & supporting exhibits.
A few steps after the key box, Plaintiffs pass through a set of security doors using an
intercom and buzzer. On the other side of the security doors, Plaintiffs encounter the prison’s
central control facility. They pass their ID’s to officers inside central control who review the
ID’s then pass them back through a different side of the wall. At this point, some of the
Plaintiffs collect equipment such as pepper spray, handcuffs, radios and scissors from central
control. This process takes two to five minutes. Some Plaintiffs never stop to collect equipment
at central control or anywhere else, either because they bring equipment with them from home or
because it is available at their posts. Deft’s Fact 18 & supp. exhs. According to testimony
presented by Defendant, the number of officers who pick up equipment at central control varies
from less than 50%, see Deft’s Ex. H, Escobar Dep.at 28:10-15, to less than 83%, see Deft’s Ex.
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G, Ramirez Dep. at 98:19-99:5 (83% return equipment and only 59% pick up keys). From
central control, officers walk to their post for the day. These posts can be anywhere from a one
to seven-minute walk away. Defendant contends that the collection of keys or equipment does
not transform the walk to post into compensable time.
These facts are undisputed. Plaintiffs take issue with Defendant’s statement that only
some Plaintiffs pick up equipment on the walk to their posts, but offer no evidence to dispute that
statement. Just as Plaintiffs challenged Defendant’s facts regarding pre-shift briefing at the
metal detector but presented no evidence to back up that challenge, here again Plaintiffs balk at
the statement that “some” officers pick up equipment, yet go on to state that “[t]he evidence is
that almost all Officers select, pick up and inventory equipment each shift.” Resp. to Deft’s Fact
18. This statement is not inconsistent with Defendants’ facts on this issue, notwithstanding
testimony presented by Plaintiffs who state that they do pick up equipment (Officers Ramirez,
Hayes, Carranza and Vasquez, see Resp. to Deft’s Fact 18). Plaintiffs also offer testimony by the
Warden that “[n]ot everybody” picks up equipment at central control—which again is not
inconsistent with Defendant’s Fact 18. Pltffs’ Ex. FF at 89:1-7.
In Fact 22, Defendants state that the walk from central control to the posts can take
anywhere from one to seven minutes. Plaintiffs claim there is a “genuine dispute” of material
fact on this issue, but offer nothing to back up this claim.
In what Defendant accurately
describes as a “diversion and data dump,” (Doc. 199 at 6, Fact 22), Plaintiffs present a barrage of
references to various Plaintiffs’ declarations without any suggestion of a time window they do
espouse. The Court took enough time to review a few of these declarations to conclude that
nothing in Plaintiffs’ responsive evidence to Fact 22 directly disputes Defendant’s statement of
fact concerning this time window. Most of these declarations, each several pages long, can best
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 19 of 44
be described as proffered measurements of total damages presented in chart and table form and
based on what Plaintiffs consider to be MTC’s unlawful rounding practices. See, e.g., Pltffs’ Ex.
T, Jauregui Decl., ¶¶10-19; Ex. P, Navarette Decl., ¶¶24, 25; Ex. Q, Gallegos Decl., ¶¶24, 25, 29.
Thus, Defendant’s statements regarding the collection of keys and equipment is neither
mischaracterized nor disputed, based on evidence submitted by Plaintiffs themselves.
The next question is whether, based on this undisputed evidence, summary judgment is
appropriate for the activity of key and equipment collection.
Plaintiffs contend that the
collection of keys and equipment is integral and indispensable to what officers do: they use keys
to guard the inmates and to lock and unlock doors to ensure security, and the equipment enables
officers to safely and securely guard the inmates. They use radios to communicate with officers
at their posts and to give them directions and instructions throughout the day. Hand restraints
and pepper spray are used by officers as both a deterrent and if necessary, to control unruly
inmates. Since the officers’ sole purpose is to guard the inmates and secure the prison, Plaintiffs
argue that the collection of keys and equipment start off the workday pursuant to the FLSA.
Plaintiffs also point to MTC’s own Timekeeping Policy which states that “[e]mployees
are prohibited from picking up keys, radios and/or weapons until they have clocked in, and their
scheduled shift has begun.” See Doc. 190 at 40 (citing Pltffs’ Exs. B & C, emphasis added by
Pltffs). However, the relevant law does not necessarily connect clocking in to the start of the
“continuous workday”—indeed, if this were so, this lawsuit would probably not have been
filed—and the Court declines to substitute a workplace policy for the legal standards underlying
the FLSA and the Portal-to-Portal Act.
Also, the plain language in the Timekeeping Policy
makes it clear that officers’ shifts begin and end at the top of the hour. MTC’s ten-minute
adjustment window is based on the start/stop times of these eight-hour shifts, and so reference to
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“shift” obviously does not refer to the act of key and equipment collection. Defendant states that
it prefers that officers pick up/return keys and equipment after their eight-hour shift starts/ends,
but this preference does not mean that key and equipment collection are therefore compensable.
Plaintiffs argue that officers often have to wait several minutes for their turn to retrieve
keys from the key dispenser—anywhere from 10 seconds to “several minutes.” Pltffs’ Add’l Fact
EE; see Deft’s Fact 15 (collection of keys can take anywhere from a few seconds to three
However, waiting is not a compensable activity and “always qualif[ies] as a
‘preliminary activity’”; nor does waiting turn an activity into a compensable one under the
FLSA. Alvarez, 546 U.S. at 40 (waiting may be necessary but is not “integral and indispensable”
[like donning protective clothing is] because waiting may or may not be necessary in particular
situations or for every employee”).
Defendant relies on Castaneda v. JBS, U.S.A., for the proposition that Plaintiffs’
collection of keys and equipment on their way to their posts is not compensable and does not
start the workday. In Castaneda, the Tenth Circuit concluded that the employees at a beefprocessing plant failed to show that an agreed upon pre-calculated time in their compensation
scheme, based on a collective-bargaining agreement (“CBA”) did not adequately compensate
them for their time changing in and out of safety clothing and equipment and walking to their job
posts. 819 F.3d 1237, 1249 (10th Cir. 2016), as amended on denial of reh'g and reh'g en banc
(May 3, 2016). The Court notes that unlike this case, there was a CBA in Castaneda that
dictated what activities were “integral and indispensable” to the plaintiffs’ work even though the
parties disputed what specific activities were encompassed by certain exclusions in the CBA.
Here, there has been no mention of a CBA to at least initially define activities that are considered
“work” for purposes of compensation under the FLSA. See 819 F.3d at 1250 (noting that under
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29 U.S.C. §203(o), “the compensability of time spent changing clothes or washing is a subject
appropriately committed to collective bargaining”). Thus, Castaneda is not dispositive of this
issue for this reason. Here, whether an activity is compensable in the first instance must be
decided by case law because there is no mention of a CBA that would have made those initial
Plaintiffs support their position with several cases outside of this jurisdiction. Defendant
attempts to distinguish these cases both legally and factually, and the Court agrees that the
distinctions are sufficient to preclude any consideration of these cases. In Baylor v. United
States, the court held that security guards were entitled to compensation for the time they spent
performing pre-shift activities consisting of drawing guns, receiving special instructions, and
proceeding to posts of duty located varying distances from the central guard house. 198 Ct. Cl.
331, 1972 U.S. Ct. Cl. LEXIS 72 (Ct. Cl. 1972) (Albright v. United States, 161 Ct. Cl. 356, 1963
U.S. Ct. Cl. LEXIS 70 (Ct. Cl. 1963). In Taylor v. United States, 1978 U.S. Ct. Cl. LEXIS 840,
at 84 (Ct. Claims, October 31, 1978), which relied on Baylor, the court found that guards were
engaged in compensable work activities when they performed the “essential duties” of reading
bulletin board for assignments, picking up gas masks, binoculars and radios. However, as
Defendant points out, the ruling in those cases rested primarily on the court’s determination that
the activities were performed primarily because they were employer-required. See Baylor, 161
Ct.Cl. at 357 (finding that activities were “officially ordered or approved”; Taylor, 1978 U.S.
Ct.Cl. at 840 (guards were “essentially obligated to perform certain duties, such as cleaning their
guns, prior to the shift each day”). After the Supreme Court’s decision in Busk, whether the
employer required an activity is not dispositive. 135 S.Ct. at 519 (a “test that turns on whether
the activity is for the benefit of the employer is similarly overbroad”; “if the test could be
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satisfied merely by the fact that an employer required an activity, it would sweep into “principal
activities” the very activities that the Portal-to-Portal Act was designed to address”).
Defendants also distinguish two other cases cited by Plaintiffs: Brantley v. Ferrell Elec.,
Inc., 112 F.Supp.3d 1348, 1371 (S.D.Ga. 2015) and Clay v. Huntington Ingalls, Inc., No. 097625, 2011 U.S. Dist.Lexis 155351, at *33-34 (E.D.La. Sept. 29, 2011). The Court agrees these
are factually inapposite. Brantley involved equipment installers who wanted to be paid for
loading their trucks and collecting work assignments each morning, and did not involve the
collection of small items, such as the keys and equipment which form the facts in this case. The
electrician plaintiffs in Clay had to transport “a cumbersome company-owned . . . hydraulic
crimping machine.” Id. at 31. The court noted that “the tasks of gathering and then lugging
certain type of tools needed for a particular day’s work assignment might very well trigger the
start of the workday when it is done pre-shift.” Id. at 34. In this case, there is no evidence of
Plaintiffs having to “lug” any equipment or anything more burdensome than small, lightweight
items, and any comparison of this case to Clay is unfounded. Further, the court in Clay remarked
that “merely retrieving and toting a pair of pliers and a screwdriver is not going to trigger the
start of the workday.” 2011 U.S. Dist.Lexis 155351, at *31. The electrician plaintiffs in Clay
could certainly argue that their tools are indispensable to their jobs—just as Plaintiffs argue
here—yet the case cited by Plaintiffs found that merely picking up and carrying these tools do
not trigger the compensable workday.
Plaintiffs also cite to a Fifth Circuit case, Dunlop v. City Elec., Inc., in which the court
found that certain chores performed by plaintiffs (also employee electricians), such as filling out
requisition papers as well as the fueling, loading and cleaning out of employer's trucks, were
compensable. Here again, the court’s ruling rested on the finding these activities were performed
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for the benefit of the employer. 527 F.2d 394 (5th Cir. 1976). The case was also remanded for
further determination of whether the time connected with these activities was de minimis and
thus, not compensable.
Therefore, the cases cited by Plaintiffs are inapposite to their own
situation, and do not provide a legal basis for finding that the collection of keys and equipment is
a compensable activity, or for denying summary judgment on the issue.
The listed “essential functions” for a detention officer are listed in Plaintiff’s Exhibit A,
including but not limited to the following:
Search for contraband and provide security;
Count, feed and supervise detainees in housing, work and other areas;
Properly prepare and maintain records, forms and reports, as appropriate;
Transfer and transport detainees by walking or riding in vehicles. Restrain and secure
assaultive detainees, as needed;
Respond to emergencies to search for detainees, administer first aid at the emergency
site, carry an injured or unconscious detainee, and perform use of force procedures,
including the use of chemical agents to control detainees4
Maintain accountability of staff, detainees and property; adhere to safety practice.
The keys and equipment collected by many of the officers are, to be sure, useful and
helpful to the officers in doing their jobs, but that does not lead to the conclusion that the
collection of keys and equipment as an “intrinsic element” of the officers’ principal activities.
See Alvarez, 546 U.S. 21, 40 (“The fact that certain pre-shift 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”) (emphasis added). It is also undisputed
that the type of tools and equipment carried by the officers are small in size and not burdensome
to carry. This activity simply does not fit within the category of pre-shift activities that are
The first three job functions are highlighted by Plaintiff in Exhibit A.
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excepted from the Portal-to-Portal Act. Cmp. Mitchell v. King Packing Co., 350 U.S. 260, 262
(1956) (holding as compensable the time meatpacker employees spent sharpening their knives
because dull knives would “slow down production” on the assembly line, “affect the appearance
of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents”) with IBP,
Inc. v. Alvarez, 546 U.S. 21, 42 (2005) (holding as noncompensable the time poultry-plant
employees spent waiting to don protective gear because such waiting was “two steps removed
from the productive activity on the assembly line”), cited in Busk, 135 S. Ct. at 518).
Plaintiffs offer no evidence to suggest that the activity of collecting keys and equipment
is “integral and indispensable” to Plaintiffs’ work. Without such evidence, the Court finds that
no reasonable fact finder would conclude that the collection of keys and equipment trigger the
“continuous workday” rule. Sandifer v. U.S. Steel Corp., 678 F.3d 590, 595–98 (7th Cir.2012)
(holding that if time to perform an activity is noncompensable under § 203(o), then the activity is
not a “principal activity” that begins or ends the workday), cited in Castaneda v. JBS USA, LLC,
819 F.3d 1237, 1249 (10th Cir. 2016), as amended on denial of reh'g and reh'g en banc (May 3,
2016). Therefore, Defendant is entitled to summary judgment on the issue of whether the
collection of keys and equipment is compensable under the FLSA.
After the officers arrive at their posts, there is a pass-down or overlap period between
the shifts of two to five minutes so that the officer going off shift can convey information about
the post to the officer coming on. This exchange occurs at the post, and it appears to be
undisputed that all officers report for these briefings.
Defendant contends that the officers’ workday begins after pass-down is given by the
previous shift, and ends when pass-down begins, on arrival of the next shift. In other words,
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Defendant claims that Plaintiffs should not be compensated for the time after they are at their
posts for pass-down briefings. Defendant states that the shift overlap lasts five minutes or less
(Deft’s Fact 27). Plaintiffs do not dispute this time range, although they contend that the overall
amount of time spent on this pass-down activity is “precisely recorded” on the timeclocks. See
Resp. to Deft’s Fact 27. However, the “facts” relied on by Plaintiffs do not offer any rebuttal
evidence at all to Defendant’s representations, and the Court is therefore free to ignore Plaintiffs’
response on this issue.5
This is the one activity which the Court concludes is compensable under the FLSA, and
this conclusion is bolstered by two cases from this district which have addressed this issue under
similar conditions. In the first case, Brubach v. City of Albuquerque which is relied on by
Plaintiffs, United States District Judge Martha A. Vazquez held that five-minute daily pass-down
briefings between security guards for the City of Albuquerque were compensable under the
FLSA, but found that a fact issue existed as to whether the guards who arrived early for pre-shift
briefing failed to incur overtime because they also left early. 6 893 F.Supp.2d 1216, 1229
(D.N.M. Sept. 27, 2012) (Vazquez, J.). Defendant contends that Brubach follows an analysis
that has now been rejected by Busk, because Busk clarified that an activity does not become
“integral and indispensable” solely because it is required by the employer. 135 S. Ct. at 519 (a
“required” activity is not necessarily compensable). However, the Court is not persuaded by this
argument, because Judge Vazquez’ conclusion was not based solely on the fact that the briefings
were required by the City:
Facts ZZ and AAA refer to “aggregate time lost by rounding versus and database charts for several Plaintiffs. This
kind of non-responsive fact is fairly typical of all the “additional facts” presented by Plaintiffs’ counsel, which the
Court has found to be a considerable waste of time.
References to “pre-shift” briefing in these relevant cases actually refer to what the parties in this case characterize
as “pass-down” briefing that occurs on post between the shift leaving and the shift that is arriving for work. The
terms “pre-shift” and “pass-down” are used interchangeably for purposes of this discussion.
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 26 of 44
The Court concludes that this briefing is an integral part of and indispensable to
the officers' principal activities, see Steiner, 350 U.S. at 254, 76 S.Ct. 330, of
maintaining custody and control of, patrolling designated areas of, and ensuring
the security of City property. The mandatory briefing period therefore constitutes
“work” even if the actual briefing took less than five minutes.
Brubach v. City of Albuquerque, 893 F. Supp. 2d 1216, 1229 (D.N.M. 2012).
Defendant relies on the other District of New Mexico case, Bustillos v. Bd. Of Cty
Comm’rs, in which United States District Judge James O. Browning concluded, inter alia, that
the pass-downs between outgoing and incoming city emergency dispatchers (referred to as “preshift briefings” in that case) were not integral and indispensable. 310 F.R.D. 631 (D.N.M. Oct.
20, 2015), No. Civ. 13-0971 JB/GBW, Mem. Op. (Doc. No. 66) at 47. In that case, Judge
Browning found that “the incoming dispatchers could instead read the desk logs” rather than
participate in verbal briefings. The court further noted that plaintiff had not presented evidence
that the pre-shift briefings contributed to either efficiency or safety—in which case the court
would have been “more inclined to find the briefings integral and indispensable.” Bustillos, Doc.
66 at 39 (citing Busk, 135 S.Ct. at 520) (explaining that “an activity is ‘indispensable’ to another,
principal activity only when an employee could not dispense without impairing his ability to
“perform the principal activity safely and effectively.”).
However, after the parties in this lawsuit briefed the instant motion, the Tenth Circuit
reversed that part of Judge Browning’s ruling which granted summary judgment for the county
on the pass-down briefing claim, and concluded that an incoming dispatcher needed to obtain
information about the previous shift in some manner and arrive earlier to work in order to get
this information, whether it was in the form of verbal briefing or reading the outgoing
dispatcher’s notes. Jiminez (Bustillos) et al v. Bd. Of Cty Commissioners of Hidalgo Cty., No.
15-2213, Order & Judgment (Sept. 14, 2017); see Doc. 211, Pltff’s Notice of Supp. Copy of
Case, citing 2017 U.S. App. LEXIS 17780). The Tenth Circuit affirmed Judge Browning’s other
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rulings but found that with regard to the pass-down briefing issue, the plaintiff should be
compensated for those extra minutes she was required to be at her job for the briefing. Id., 2017
U.S. App. LEXIS 17780, *3 (“No one argues that it is not integral and indispensable for the
incoming dispatcher to obtain this information in some manner before beginning her shift.”).
The Tenth Circuit also rejected the county’s reliance on the de minimis defense.
Importantly, that ruling turned on the finding that the county, by its written policy, required
dispatchers to be at work five minutes before every shift, and thus the time spend in briefings
constituted a “fixed or regular working time,” and a “practically ascertainable period of time” the
employee was required to spend on those duties. Id. at **4-5. The Tenth Circuit acknowledged
that an employer may disregard insubstantial and inconsequential amounts of time “where there
are uncertain and indefinite periods of time involved of a few seconds or minutes duration.” Id.,
at *4 (citing 29 C.F.R. §785.47), but noted that an 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 is regularly required to spend on duties assigned to
Id. (citing 29 C.F.R. §785.47) (emphasis added).
The Court of Appeals therefore
concluded that a trier of fact in that case could make findings about how much overtime the
county owed the dispatcher and a de minimis defense was not appropriate.
In light of this procedural turnaround in Bustillos, Defendant cannot rely on that case to
argue that pass-down briefings are not compensable as a matter of law. Nor is Defendant
justified in advancing an analysis that does not take into account whether an activity is employerrequired in order to determine whether an activity is “integral and indispensable” to a principal
activity. Cmp. Barrentine v. Arkansas-Best Freight System, Inc., 750 F.2d 47, 50 (8th Cir. 1984)
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 28 of 44
(the “only activities excluded from FLSA coverage are those undertaken [for the employee's]
own convenience, not being required by the employer”).
In the instant case, it is undisputed that both the relief officer and the outgoing officer
must be present in order for pass-down to occur, and also that the outgoing officer does not leave
his post before pass-down is completed. One can reasonably infer from the undisputed facts not
only that an officer’s presence for pass-down is an employer-required activity, but also that passdown briefings are integral to the efficient performance of the officers’ job duties maintaining
safe custody of the inmates and the security of the facility. See Busk, 135 S.Ct. at 518
(comparing the compensable activity of meatpacker employees sharpening their knives “because
dull knives would ‘slow down production’ on the assembly line,” “affect the appearance of the
meat as well as the quality of the hides,” “cause waste” and lead to “accidents,” with the
noncompensable activity of donning protective gear because such waiting was “two steps
removed from the productive activity on the assembly line”).
The Court therefore finds that the pass-down briefings that occur on post are integral and
indispensable to Plaintiffs’ principal activities, and are therefore compensable.
remaining question is whether any discrepancy between what Plaintiffs are paid and their
scheduled start/end times is de minimis, which the Court will address below.
Walking to and from post
In Fact 22, Defendants state that the walk from central control to the posts can take
anywhere from one to seven minutes. Plaintiffs claim there is a “genuine dispute” of material
fact on this issue, but they offer nothing to back up this claim. Plaintiff provides references to
declarations from numerous Plaintiffs, but in the end the facts on this issue presented by
Defendant are never refuted. Nowhere in Plaintiffs’ response to Defendant’s Fact 22 is there any
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evidence suggesting that the walk from central control to the various posts is a one-to-seven
Plaintiffs also claim that the walk from central control to the posts is compensable
because it occurs after first principal activity of shift and because walking requires vigilance
because they are inside a prison. However, the Court has concluded that, for summary judgment
purposes, the first principal activity of shift occurs after the officers arrive at their posts, and
potentially when they arrive just prior to the pass-down briefing. Also, none of the walking done
by officers to and from their posts involves inmates, so that this particular walk can be
considered part of the officers’ principal activities.
The Portal-to-Portal Act expressly excludes “walking . . . to and from the actual place of
performance of the principal activity or activities” as a compensable activity.
§254(a)(1). Under Tenth Circuit precedent, the time spent in walking to one’s place of work,
which is normally non-compensable, does not become compensable under the Portal-to-Portal
Act “just because during that travel the employee must carry an item necessary for performance
of the work if carrying the item adds negligible time or inconvenience to the travel.” Castaneda
v. JBS USA, LLC, 819 F.3d 1237, 1249 (10th Cir. 2016), as amended on denial of reh'g and
reh'g en banc (May 3, 2016) (emphasis added). Plaintiffs offer no evidence to refute any of
Defendant’s facts on this issue, and the Court finds no reason to except this activity from the
non-compensable categories of preliminary activities described in the statute. See Castaneda v.
JBS USA, LLC, 819 F.3d 1237, 1242 (10th Cir. 2016), as amended on denial of reh'g and reh'g
en banc (May 3, 2016) (commute time and walking to and from the employee's work station is
ordinarily noncompensable). Defendant is therefore entitled to summary judgment on this issue.
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The analysis above works in reverse after an officer’s shift, so that the Court’s findings
herein regarding preliminary or pre-shift activities apply to the same activity post-shift.
De Minimis Defense
Defendant advances a second theory for summary judgment, contending that any
discrepancy between what Plaintiffs are paid and their scheduled start/end times is de minimis.
Defendant argues that the amount of daily time at issue is less than ten minutes, because it takes
about ten minutes for an officer to walk from the time clock to his post, and because of MTC’s
ten-minute time adjustment window. Plaintiffs acknowledge that the officers get paid for time
beyond an eight-hour shift when they either arrive early or leave late by more than ten minutes.
What they take issue with is that officers do not get paid when clock in and clock out times
added together for the day exceed the 10 minute threshold. Plaintiffs also argue that, as a matter
of law, Defendant cannot avail itself of the de minimis defense.
The Court has determined that only the pass-down briefing is arguably compensable
under the FLSA, subject to fact finding at trial, and has granted summary judgment to Defendant
on the issue of compensability for activities other than pass-down briefings which occur on post.
This ruling also results in a finding that none of the time spent walking on the way to the post is
compensable, since Plaintiffs have presented no evidence to preclude summary judgment on the
compensability of any of the activities done along the way. Defendant contends that pass-down
lasts anywhere from two to five minutes. Deft’s Fact 27. Plaintiffs do not dispute this particular
fact, but instead claim that the exact time required for pass-down is recorded, but this makes no
sense at all since it is undisputed that the time clocks are not located on posts, where pass-down
Because the “de minimis” defense applies to “otherwise compensable” activities, the
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only time segment at issue here is the time attributed to pass-down briefings. See Reich v.
Monfort, Inc., 144 F.3d 1329, 1333 (10th Cir. 1998).
Based on the Court’s findings above, then, the only remaining questions are (1) whether
Defendant can rely on a de minimis defense at all, and if so, (2) whether the time spent in passdown briefing (assuming that it is a compensable activity) is de minimis.
Relevant Law Regarding De Minimis Defense
The “de minimis” defense applies to compensable activities where they are so
insubstantial that it should not be considered in the work week. It is only when an employee is
required to “give up a substantial measure of his time and effort that compensable working time
is involved.” Reich v. Monfort, Inc., 144 F.3d 1329, 1333 (10th Cir. 1998) (“otherwise
compensable preliminary and postliminary activities are not included in calculating hours
worked in a week if the period of time spent on an activity is so “insubstantial and insignificant”
that it ought not be included in the work week) (emphasis added). Under the de minimis
doctrine, “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.” Castaneda, 819 F.3d at 1242–43; Brubach, 893 F. Supp. 2d at 1235 (D.N.M.
2012). However, an 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 is regularly required to spend on duties assigned to him.” Id. (citing Reich v.
Monfort, 144 F.3d 1329, 1333–34 (10th Cir.1998); Brubach v. City of Albuquerque, 893 F. Supp.
2d 1216, 1234–35 (D.N.M. 2012) (noting that that the de minimis exception excludes from FLSA
compensability only insubstantial or insignificant time “beyond the scheduled working hours.”
Anderson, 328 U.S. at 692–93, 66 S.Ct. 1187; 29 C.F.R. § 785.47. For example, in Bruback,
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Judge Vazquez concluded as a matter of law that a mandatory five-minute pre-shift briefing
[pass-down briefing] period does not constitute time “beyond the scheduled working hours” and
that it “indeed constitutes part of an employee’s fixed or regular working time.” 893 F.Supp.2d
at 1235. As a result, that time was not subject to the de minimis exception. See Bustillos v. Bd.
County Comm’rs, No. Civ. 13-0971 JB/GBW, Mem. Op. (Doc. No. 66) at 47 (D.N.M. Oct. 20,
2015) (finding that the county could not disregard five minute briefing period as de minimis
because the regulation allowing an employer to disregard insubstantial and inconsequential
amounts of time “applies only where there are uncertain and indefinite periods of time involved
of a few seconds or minutes duration”), reversed on other grds., Bustillos v. Bd. Of County
Comm’rs, No. 15-2213, Order & Judgment (Sept. 14, 2017), citing 29 C.F.C. §785.47.
As of the date of filing of this opinion, the Tenth Circuit has declined to announce a
bright-line test for a de minimis defense. In Reich v. Monfort, Inc., the circuit relied on a test
articulated by the Ninth Circuit in Lindow v. U.S.:
[a]n important factor in determining whether a claim is de minimis is the amount
of daily time spent on the additional work. There is no precise amount of time that
may be denied compensation as de minimis. No rigid rule can be applied with
mathematical certainty.” Id. at 1062. Defendant points out that the instant case
involved ten-minute periods, and that Lindow noted that “[m]ost courts have
found daily periods of approximately 10 minutes de minimis even though
otherwise compensable.” Id. (citing cases). But we have cited with approval cases
finding that “as little as ten minutes of working time goes beyond the level of de
minimis and triggers the FLSA.
Reich v. Monfort, Inc., 144 F.3d 1329, 1333 (10th Cir. 1998) (“Monfort”) (citing Lindow, 638
F.2d 1059 (9th Cir. 1984)). Instead of a bright-line approach, the Tenth Circuit has adopted a
test where the district court must evaluate three factors (the “Lindow/Monfort” factors), in
addition to the amount of time spent on the additional work, in order to determine whether
otherwise compensable time is de minimis:
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1) the practical administrative difficulty of recording the additional time;
(2) the size of the claim in the aggregate; and
(3) whether the claimants performed the work on a regular basis.
Monfort, 144 F.3d at 1333-34.7 The Tenth Circuit also noted that the first part of the test is the
setting out of the amount of time and then proceeding to evaluate whether that time is de minimis
under the three factors. Id.
Reliance on De Minimis Defense as a Matter of Law
Plaintiffs contend that Defendant is essentially barred from relying on a de minimis
defense for three reasons: (1) the defense is inapplicable in an FLSA case; and (2) MTC’s
electronic time-tracking and pay-to-the-minute payroll system is incompatible with the de
Supreme Court’s Decision in Sandifer
Plaintiffs argue that Defendants cannot use the de minimis defense in this case because it
is an FLSA case, based on the decision by the United States Supreme Court, Sandifer v. U.S.
Steel Corp., 134 S.Ct. 870 (2014). In that case, steelworkers brought a collective action under
the FLSA alleging that their employer failed to compensate them for time spent donning and
doffing protective gear. The collective-bargaining agreement in that case provided that “time
spent in changing clothes” at the beginning or end of each workday” was noncompensable.
Plaintiffs rely on the Supreme Court’s observation in Sandifer that the de minimis doctrine “does
not fit comfortably” within the FLSA statute . . . .” 134 S.Ct. at 873. However, the Supreme
Court never announced that the de minimis defense was unavailable in FLSA cases; it simply
In Monfort, the Tenth Circuit found this question to be a “close call.” 144 F.3d at 1334. The court found that it
would be “administratively difficult” to record the actual time taken by each worker in a meat processing plant to
take on and off a variety of safety gear, which weighed in favor of finding that time noncompensable. However,
because the other two factors (aggregate amount and regularity of additional work) weighed in favor of the
employees, the court agreed with the district court’s conclusion that the work was not de minimis and therefore was
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“doubt[ed] that the de minimis doctrine can properly be applied to the present case.” 134 S.Ct. at
880 (emphasis added). The question in that case was not whether the amount of time at issue
should be disregarded as de minimis, but whether time spent in a preliminary activity should
properly be considered part of the “gross workday” and thus outside of the provision in the
collective bargaining agreement governing “time spent in changing clothes.” 134 S.Ct. at 880. In
the end, the court concluded that the donning and doffing of safety glasses and earplugs was in
fact minimal, and plaintiffs were sent back to the collective bargaining table to negotiate that
issue in the context of the clothes-changing provision. The reasoning in Sandifer was also
complicated by the fact that a collective bargaining agreement was the starting point for the
parties’ understanding of what activities were considered “work” and therefore compensable
under the FLSA. There has been no mention of a collective bargaining agreement here, and so
the court’s concern in Sandifer regarding the applicability of the de minimis doctrine is not an
issue here. The Court therefore finds that Defendant is not barred from asserting the de minimis
defense based on Sandifer as a matter of law. See Castaneda, 819 F.3d at 1249 (recognizing
Sandifer’s concern with applying the de minimis test, but noting that the on-the-whole test used
in that case is “rather similar” to the de minimis test.)
Plaintiffs also claim that Defendant is precluded from using the de minimis defense
because MTC has a time-tracking and pay-to-the-minute payroll system.
argument fails because it assumes that Plaintiffs’ use of the time clock between the metal
detector and the key collection box mark the start and end of their workday, but there has been
no evidence presented that compensable time is triggered by the time clock, nor is there any
relevant law to support that notion. Plaintiffs themselves recognize that the time clocks are not
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reliable as an accurate indicator of time worked (even assuming that start/end workday times
were the same as clock in/out times), either because there are occasions where the clocks
malfunctioned, or because officers “forget or are unable to clock in or out for some reason.”
Doc. 190 at 9; see also Pltffs’ Resp. to Deft’s Fact 25. Therefore, MTC’s time-tracking system
does not preclude Defendant from asserting a de minimis defense.
Analysis for De Minimis Issue Based on Evidence
Plaintiffs also contend that the evidence presented on summary judgment establishes that
the de minimis defense does not apply to this case. The Court has granted summary judgment to
Defendant on the issue of whether pass-down briefing is compensable under the FLSA but now
considers whether Defendant is entitled to a de minimis defense on that issue.
An 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 is
regularly required to spend on duties assigned to him.” Id. (citing Reich v. Monfort, 144 F.3d
1329, 1333–34 (10th Cir.1998). Defendant may not rely on a de minimis defense if the time
officers spend in the pass-down briefings are “fixed or regular” or are “practically ascertainable.”
In this case, some officers receive briefing when they show up early for their assigned shifts;
others receive briefing even though they show up late. Further, because there is no way to
accurately determine the exact amount of time spent in these briefings, the time periods are not
“practically ascertainable.” Thus, Defendant is not barred from asserting the de minimis defense.
See Bustillos, 2017 U.S. App. LEXIS 17780, at *5 (rejecting defendant’s de minimis defense
based on county’s written policy requiring dispatchers to be at work five minutes before every
shift, and thus the time spend in briefings constituted a “fixed or regular working time,” and a
“practically ascertainable period of time” the employee was required to spend on those duties).
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Under the Lindow/Monfort analysis, the Court first considers the amount of time at issue.
Under Tenth Circuit precedent, as little as ten minutes of working time per day might be more
than de minimis. See Monfort, 144 F.3d at 1333. Here, viewing the facts favorably to Plaintiffs,
the greatest amount of uncompensated time per day is eight minutes total per shift, but this
captures time spent in activities which the Court has already found to be noncompensable
because Plaintiffs’ calculations include all time from the point of clocking in/out. See Doc. 160
at 27; Resp. at 21-22 (Pltffs’ Add’l Fact Z).8 Also, these calculations are made using time
periods shown on the timecards from clock-in before shift start (which favors officers when they
clock in early) and from shift end to clock out (which favors officers who leave post early but are
still paid from the top of the hour at shift end).
Because these time representations are spurious, the Court can safely find that the total
addition amount of time spent of “work” is substantially less than the top figure (eight minutes
per shift) offered by Plaintiffs.
Administrative Difficulty of Recording Additional Time
It is undisputed that pass-down briefings take anywhere from two to five minutes. It is
also undisputed that the exact amount of time spent in pass-down briefings is not recorded
anywhere. There are no time clocks on post, which is where pass-down occurs, nor would it be
practical to place time clocks at every post. This means there is no way to accurately track what
time officers arrive or leave posts before and after pass-down briefings.
MTC would have to
place an administrator at each of the 46 posts ready to note the exact time oncoming officers
begin work and outgoing officers stop work. The first “Lindow/Monfort” factor therefore favors
Plaintiffs offer eight minutes per shift during calendar year 2013, but other calendar years are even less, from three
to seven minutes per shift—calculated from clock in/out times, and not reflecting the actual time officers spent in
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Defendant claims that the aggregate sum is based on Plaintiff Rosales’ figures at
$355,478.00 (referring to Plaintiff Rosales’ deposition testimony), but that the “actual aggregate
figure” is “necessarily substantially less.” Doc. 199 at 23. Plaintiffs claim that on an individual
basis, an officer loses an average of more than 50 hours of overtime per year, although it is not
clear how Plaintiffs arrive at this number.
Doc. 190 at 51. Defendant puts this figure in
perspective, pointing out that the Monfort case involved more than 6,000 employees and
$1,570,019.34 in unpaid overtime, where this case involves 122 plaintiffs, and the outside figure
of $355,478.00 refers to compensation sought for activities which the Court has found are not
compensable under the FLSA, as well as for pass-down briefings. Therefore, the aggregate
amount of compensable time is also in MTC’s favor.
(3) Regular Basis
The final Monfort/Lindow factor concerns the regularity of the work. The only activity at
issue here is the pass-down briefing. It is apparent that all officers receive pass-down briefing,
but there is no fixed time any of them must show up on post for these briefings. While some
officers arrive on post early and stay late, by the same token some arrive on post late and leave
post early too. For the latter group of Plaintiffs, there is regularly no unpaid work and they are
more than fully compensated.
Also, as Defendant notes, the analysis must also take into account how MTC’s tenminute adjustment window affects any alleged uncompensated time. MTC contends that for
Plaintiffs who arrive on post and begin working a few minutes early or stay on post working a
few minutes late, the de minimis doctrine favors a summary judgment ruling in favor of
Defendant. Because of the ten-minute adjustment window, the slower the Plaintiff is in getting
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from the time clock to post, the less unpaid work time he could claim. Conversely, the fastest
Plaintiff would have the most potential unpaid time. See Deft’s Mot. & Reply, Doc. 160 at 26 &
n.4; Doc. 199 at 22. As Defendant observes, even using check in/out times that are most
favorable to Plaintiffs, the ten-minute adjustment window serves to favor officers who are slower
to arrive at post because these officers are still paid for their full eight-hour shift even if they
arrive late to their shifts up to ten minutes and leave up to ten minutes before their before their
The Court finds this last factor to balance evenly between the parties, but that on the
whole, the Monfort/Lindow factors weigh in favor of Defendant and Defendant is entitled both
legally and factually to the de minimis defense.
Estoppel Argument Based on MTC’s Process for Claiming Unpaid Work Time
Defendant’s last argument on summary judgment is that Plaintiffs’ claims are barred to
their failure to use MTC’s time adjustment process, which is a system for correcting
compensation errors. The Court need not address this argument, having found in favor of
Defendant on the issue of compensability of the activities for which Plaintiffs’ seek
State Law Claims
Plaintiffs allege that in addition to violating the FLSA, Defendant also violated the
overtime provisions of New Mexico’s Minimum Wage Act (“MWA”) by failing to pay officers
the detention officers for all hours worked in excess of the 40 hours per workweek. See NMSA
§ 50-4-22(D); Doc. 3 (Am. Compl.), ¶66. As its last argument, Defendant contends that
summary judgment should be granted on these state claims, arguing that the result pursuant to
federal law should also apply to these claims.
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The Court would have expected some response from Plaintiffs’ counsel regarding this
last argument on the state law claims, but as Defendants also observe, the only reference to state
law claims is in a footnote in the response, noting that the legal standard for FLSA claims “are
similar to, or higher, than asserting claims” under the MWA.” Doc. 190 at 33, n.30. Plaintiffs
offer no legal authority for this statement. However, taking the language in the footnote at face
value, it appears that Plaintiffs acknowledge and concede that if summary judgment was granted
to their federal claims, it would also apply to the state law claims.
The Court finds that except for the pass-down briefing done between shifts at the various
posts, all other activities for which compensation is claimed are either preliminary or
postliminary to the officers’ principal work activities and are therefore not subject to
compensation. On the sole activity of pass-down briefings which the Court finds to be “integral
and indispensable” to the officers’ “principal activities,” the Court further finds and concludes
that the de minimis defense applies. The Court finds no legal or factual bar to applying its
findings and conclusions regarding Plaintiffs’ FLSA claims to the state law claims asserted under
the MWA. In fact, there is some basis for looking to the case law regarding the FLSA for
interpretive guidance where the MWA and the FLSA contain similar provisions. See, e.g.,
Segura v. J.W. Drilling, Inc., 2015-NMCA-085, ¶ 15, 355 P.3d 845, 850, cert. denied, 2015NMCERT-008, ¶ 15, 369 P.3d 368 (“it is appropriate to look to decisions of federal courts
determining the meaning of “employ” in the federal statute, and to consider those federal
decisions as persuasive authority in deciding the meaning of “employ” in the New Mexico
Also, as Defendant points out, New Mexico would apply the same estoppel-like
concept when employees fail to follow grievance procedures. See Lucero v. Bd. Of Regents,
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 40 of 44
2012-NMCA-055, 278 P.3d 1043 (requiring employees to comply with the mandatory internal
grievance procedure before filing suit for breach of contract).9
Defendant acknowledges that the MWA contains no analog to the federal Portal-to-Portal
Act, and so interpretations of the Portal-to-Portal Act are viewed as “unhelpful” in considering
state law compensation claims brought under the MWA. Segura, 2015-NMCA-085, ¶ 15. At
the same time, however, New Mexico’s “legislative silence” on Portal-to-Portal Act provisions
(such as travel time, which is not an issue in this case) does not mean that such time is
compensable under state law. Moreover, as previously mentioned, the Portal-to-Portal Act did
not change earlier descriptions of the term “work” as interpreted under the FLSA and the Court
relied on those interpretations here in order to determine whether the activities in question were
an “integral and indispensable” to Plaintiffs’ principal activities. See Steiner v. Mitchell, 350
U.S. 247, 254 (1956) (in passing the Portal-to-Portal Act, Congress still intended for an
employee’s activities to fall within the protection of the FLSA “if they are an integral part of and
are essential to the principal activities of the employees”). Plaintiffs allege under both the FLSA
and the MWA that Defendant failed to pay them for time “worked” over the 40-hour workweek,
and the Court’s findings that only the pass-down briefings were compensable under the FLSA
necessarily apply to Plaintiffs’ state law claims.
The Court similarly may rely on Defendant’s de minimis defense for the one activity
found to be compensable. The de minimis concept has been applied to “otherwise compensable”
preliminary and postliminary activities where the period of time spent on an activity is so
“insubstantial and insignificant” that it ought not be included in the work week). Reich v.
The Court did not address Defendant’s estoppel argument because of the Court’s disposition of Plaintiffs’ claims
on summary judgment.
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 41 of 44
Monfort, Inc., 144 F.3d at 1333. Plaintiffs’ state law claims involve identical time increments,
and the Court finds no reason to avoid the de minimis doctrine here as well.
For these reasons, Defendant is entitled to summary judgment on all of Plaintiffs’ state
law claims under the MWA.
Plaintiffs’ Opposed Motion for Leave to Supplement a New Timekeeping Policy
Issued by Defendant on September 1, 2017 to the Record for Four Pending Motions (Doc.
While the Court was preparing this opinion for final draft, Plaintiffs filed an Opposed
Motion for Leave to Supplement a New Timekeeping Policy Issued by Defendant. Doc. 208.
Plaintiffs claim that this new policy establishes that there is no administrative burden to record
time, and contradicts MTC’s arguments related to the de minimis defense. Plaintiffs also contend
that MTC’s implementation of the “new” Timekeeping Policy is a “written recognition” by MTC
that time spent picking up keys, radios and weapons is compensable and further, that the policy
is evidence of a willful violation because Defendant implemented it “after MTC was informed”
that its prior practice violated the law. Doc. 208 at 3-4. In relevant part, the policy states:
You remain prohibited from picking up keys, radios, and/or weapons until you
have clocked in and must return such items prior to clocking out . . .
You are prohibited to clock in more than five or ten minutes . . . prior to your
scheduled start time. . .
You are also prohibited to clock out more than five or ten minutes . . . after your
scheduled shift end time . . . .
Doc. 208-1. Plaintiffs also claim that end that the new policy is also evidence of similarity
among putative class members. The Court rejects all of Plaintiffs’ arguments. The fact that
MTC updated its Timekeeping policy (as it has periodically, see Pltffs’ Exs. B & C) does not
constitute an admission that the collection of keys and equipment is compensable under the
FLSA or the Portal-to-Portal Act.
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The Court has reviewed the updated Timekeeping Policy and finds that it adds nothing at
all to Plaintiffs’ position on either Defendant’s de minimis defense or Plaintiffs’ rounding
practice argument. First, the Court has rejected Plaintiffs’ “rounding policy” claim and has
found that this is not a “rounding” case, so the updated Timekeeping policy has no relevance to
that claim. Second, the supplemental exhibit provides no reason for the Court to modify its
rulings in this opinion concerning its ruling on the de minimis defense.
The Court has
determined that “work” does not begin until pass-down briefing occurs at the posts where most
of the inmates live, not at the time clocks. Thus, the new Timekeeping policy does not make
tracking work time any less difficult than it was before. In fact, the Court agrees with Defendant
that the September 2017 Memo demonstrates the administrative difficulties posed by the
workplace at issue here. Last, the Court need not address Plaintiffs’ claim that the new policy
demonstrates similarity among the putative class members, since summary judgment has been
granted to Defendant on liability.
Accordingly, Plaintiffs’ Opposed Motion for Leave to Supplement a New Timekeeping
Policy Issued by Defendant on September 1, 2017 to the Record for Four Pending Motions (Doc.
208) is hereby DENIED.
In sum, the Court finds and concludes that Defendant is entitled to summary judgment on
all of Plaintiffs claims, specifically:
(1) The Court agrees with Defendant that Plaintiffs’ “rounding policy” theory does not
apply in this case, and therefore the Court rejects Plaintiffs’ illegal “rounding” argument as a
basis for Plaintiffs’ claims in this lawsuit;
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 43 of 44
(2) The Court finds and concludes that the only pre- and post-shift activity that is
compensable under the FLSA is the pass-down briefings on post. Defendant is denied summary
judgment on that sole issue;
(3) However, the Court also finds and concludes that Defendant is not precluded as a
matter of law from asserting the de minimis defense, and further finds that any discrepancy
between what Plaintiffs should be paid and their scheduled start/end times is de minimis, thereby
granting Defendant summary judgment on all of Plaintiffs’ claims under the FLSA;
(4) The Court need not address Defendant’s estoppel argument, having found in favor of
Defendant on the issue of compensability of the activities for which Plaintiffs seek
(5) The Court’s findings on Plaintiffs’ FLSA claims with regard to pre-and post-shift
activities also apply to Plaintiffs’ state law claims, and based on those findings, Defendant is
entitled to summary judgment on Plaintiffs’ state law claims under the New Mexico Minimum
(6) The Court denies Plaintiffs’ Opposed Motion for Leave to Supplement a New
Timekeeping Policy Issued by Defendant on September 1, 2017 to the Record For Four Pending
Motions, Doc. 208 because the supplemental exhibit would not provide any reason for the Court
to modify any of the findings in this decision;
Based on the Court’s review of Plaintiffs’ claims asserted in the Amended
Complaint, this Memorandum Opinion and Order disposes of all of Plaintiffs’ claims in their
Case 2:16-cv-00050-WJ-GJF Document 215 Filed 10/24/17 Page 44 of 44
THEREFORE, IT IS ORDERED that Defendant’s Opposed Motion for Summary
Judgment on Liability (Doc. 160) is hereby GRANTED for reasons described in this
Memorandum Opinion and Order.
A Rule 58 Judgment shall issue separately.
UNITED STATES DISTRICT JUDGE
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