This article appears in the December 2019 issue of our monthly newsletter Public Safety Labor News.
The collective bargaining agreement between the Missouri Department of Corrections (DOC) and the Missouri Corrections Officers Association provides that the DOC “will comply with the Fair Labor Standards Act (FLSA).” The DOC’s policy manual similarly states it is intended “to ensure departmental compliance with FLSA rules.”
In 2012, a group of corrections officers brought a class action suit against DOC alleging a breach of contract for failure to pay for pre- and post-shift activities.
The officers alleged that their daily pre- and post-shift activities which added an additional 30 minutes to the officers’ daily work routine, and for which they alleged they were not being compensated, included the following:
(1) Electronically logging their arrival or departure from the facility by either scanning a Bar Coded or Radio Frequency Identification, and/or manually signing in or initialing a paper entry/exit record, and/or submitting to biometric identification such as a finger print or palm scanning instrument, or a combination of these things; (2) reporting to the Central Observation Post to receive assignments; (3) passing through security gates/entry points, including passing through a metal detector on arrival and through an airlock when entering and exiting the security envelope; (4) presenting themselves before a custody supervisor who communicated to the officers their daily post/duty assignment; (5) picking up or returning equipment such as keys or radios from electronic key boxes or key/radio issue rooms; (6) walking to and from the entry points to duty post and possibly waiting in line if one has formed for any of the above activities; (7) in the case of vehicle patrol officers, inventorying the vehicle patrol’s issued weapons, ammunition, and equipment prior to and at the end of each shift; and (8) passing of pertinent information from one shift to another.
A trial court certified a class of more than 13,000 current and former corrections officers and in August 2018, held that the DOC had breached its labor contract with the Association by not compensating officers for the pre- and post-shift work. When a jury returned a verdict against DOC for past damages of $113,714,632, the DOC appealed.
The Missouri Court of Appeals upheld the verdict. The Court found that “it is undisputed that the officers are ‘on duty and expected to respond’ if incidents of ‘offenders confronting staff and becoming physical’ occur at any time after they go into the facility. When they are on the premises, officers are ‘expected to act as a prison guard’ during their pre-shift and post-shift required activities. Officers must ‘pay attention to the offenders absolutely at all times.’ Inside the premises, it is imperative that the officers are ‘going to be mindful of offenders’ behavior.’
Officers ‘have to monitor and pay attention to offenders walking to their post and walking back.’ Officers are trained to be careful during pre- and post-shift activity and shift change time because they know those are the times that prisoners often take action, such as escape attempts and staging fights to divert officers’ attention.
“Given DOC’s undisputed knowledge of, and expectation for, the officers’ requirement to utilize their training to guard against prisoner fights and escape attempts during shift changes, we conclude that the pre-and post-activities of the officers are not ‘pre’ or ‘post’ at all; instead, these shift change activities are ‘integral and indispensable’ to the officers’ ‘principal activities’ for which they are hired by DOC, that is, guarding against and protecting the public from prison riots and escape attempts. According to Supreme Court precedent, these activities are, indeed, part of the officers’ principal activities of employment by DOC and must be compensated pursuant to the FLSA.
“Further, at minimum, the officers are required by their employer to report at a particular hour at the place where they perform their principal activity, and the officers are ‘there at that hour ready and willing to work.’ The officers are ‘on duty and expected to respond,’ ‘acting as a prison guard,’ whether or not offenders take action requiring officers’ intervention. In other words, the officers are ‘waiting for work,’ at all times from the moment they arrive at the premises, which is, as such, ‘integral and indispensable to their principal activities.’
“Here, the most dangerous, relevant, and integral part of the officers’ ‘extra work’ is the transition from entering the correctional facility and arriving at their shift post – where the threat of prison riots and attempted escapes are real, formidable, and of such nature as to require diligent attention and readiness to intervene. This ‘extra work’ is daily. It is not a ten minute or less daily activity; instead, combined with the entire pre/post shift ‘extra work’ in the aggregate, the officers are spending 30 minutes per day on this ‘extra work.’ Hence, both substantively and quantitatively, the ‘extra work’ demanded of the officers simply cannot be categorized as de minimis.”
Hootselle v. Missouri Dept. of Corrections, 2019 WL 4935933 (Mo. Ct. App. 2019).
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