Sotomayor’s Second Circuit Decisions on the Fair Labor Standards Act

There’s only one Second Circuit case authored by Judge Sotomayor to fall within the category of the Fair Labor Standards Act (FLSA). It’s a somewhat important case, since it deals with whether time commuting to and from work is compensable, and it shows a practical side of Sotomayor that seems to override a purely legal approach to a case.

Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008)
Fire alarm inspectors for the City of New York are required to carry their inspection files in a department-provided briefcase during their commutes from home to work and back. To improve efficiency, the inspectors aren’t allowed to store their inspection documents overnight at department headquarters or to start or end their day at headquarters. Instead, the inspectors are required to report directly to their first inspection at the starting time of 9:00 a.m. with all necessary inspection materials and to sign out at the end of the day at the closest firehouse.

The inspectors claim that carrying and keeping safety inspection files affects their commutes in various ways and that they should be compensated for their time and effort. Carrying the documents sometimes cause inspectors to occasionally to miss a bus or train. Carrying the documents slows their walk to a subway station, sometimes causing an inspector to miss the subway, adding 20-30 minutes to a commute. In addition, this requirement interfered with the social life of the inspectors because they had to go home with the inspection files to keep them safe before going to a social event.

The inspectors filed suit claiming that they were entitled to be paid for their commute time under the Fair Labor Standards Act because of the extra effort required by the necessity of keeping the files with them in their briefcases. The district court ruled against the inspectors, finding that the requirement concerning the inspection files had a minimal impact on the inspectors.

On appeal, Judge Sotomayor decided that the case needed to be analyzed in two parts: whether the inspectors should be paid for their entire commute because of the requirement to carry inspection documents, and if not, whether the inspectors were entitled to compensation for the actual additional commuting time the documents requirement caused.

Sotomayor agreed with the district court that the Portal-to-Portal Act exempts employers from compensating employees under the FLSA for time spent “traveling to and from the actual place of the performance of the principal activity or activities” of employment. Employees must be compensated, however, for any work performed during a commute that is “integral and indispensable” to a principal activity. So, in order for the inspectors to prevail in this case, they had to show that carrying the documents in question constitutes work and is an integral and indispensable part of their inspecting duties.

According to Sotomayor, the inspectors weren’t able to show that. Carrying a briefcase during a commute presents only a minimal burden on the inspectors, permitting them freely to use their commuting time as they otherwise would have without the briefcase: reading, listening to music, eating, running errands, etc. While the city benefits from the inspectors’ carrying the files, it can’t be said that the city is the predominant beneficiary of this time. Thus, the mere carrying of the files doesn’t transform the inspectors’ otherwise non-compensable commute into compensable time.

Finding that the city is pushing the limits on the burdens it may impose in employees during a commute before it must pay them for the time, Sotomayor was mindful of the practical consequences of a ruling in the inspectors’ favor. Specifically, businesses everywhere could have liability to compensate employees anytime they had to commute to work with important documents, tools, or communications devices.

Regarding whether the inspectors were entitled to be paid for any actual additional time carrying the files caused, Sotomayor also ruled in favor of the city. Any actual additional time was minimal. Moreover, the practical administrative difficulty of recording actual additional time would be extremely difficult, next to impossible. Finally, when the inspectors’ depositions were taken, they conceded that their commutes are actually only lengthened on occasional days and, then, for a short period of time. Thus, the inspectors weren’t entitled to any extra pay associated with their carrying the inspection files.

Analysis of Sotomayor’s Decision
By ruling in this manner Sotomayor confirmed the sanctity of the Portal-to-Portal Act when it comes to commuting time. Allowing exceptions to this Act would place employers at potentially significant risk for additional compensation. Although Sotomayor is keen on employees being paid what they’re due (as evidenced by some of her district court decisions on the FLSA), she also recognizes the importance of a stable system for determining the payment of wages and overtime.

Next, we’ll look at Sotomayor’s traditional labor decisions.