In Alvarez, the Court expanded the compensable workday by holding that any preliminary activity which is "integral and indispensable" to the principal activity commences the compensable workday and is not exempt under the Portal-to-Portal Act. The expansion of the workday leads to the question of whether employers outside the context of Alvarez must begin paying their employees for time spent commuting to and from work when an employee undertakes an "integral and indispensable" preliminary activity outside the workplace, or performs an "integral and indispensable" postliminary activity upon reaching home. In other words, in situations like the above example, Carla's act of checking her email could potentially be considered an activity which begins the workday, which means that all activities conducted after that point are compensable. Such an extension seems to undermine the Congressional purpose of the Portal-to-Portal Act and could effectively re-create the excessively litigious climate between employer and employee that the Act was meant to contain. Part II of this Note examines the history of the Portal-to-Portal Act and discusses the contradictory holdings of the First and Ninth Circuit Courts of Appeals which led to the Supreme Court's grant of certiorari on the issue. Part 1I will also address the Supreme Court's opinion in IBP, Inc. v. Alvarez. Part III explains the repercussions of the Alvarez decision in areas outside of donning and doffing, focusing on the issue of whether and when commuting time should be compensable. In addition, Part III also considers the possibility of federal legislation to clarify the area of commuting time under the Portal-to- Portal Act. Finally, this section gives suggestions as to what employers should presently do in order to combat unwanted liability after Alvarez.
Christine D. Higgins,
Can I Get Paid for That?: The Compensability of Commuting Time Post-IBP, Inc. v. Alvarez, 546 U.S. 21 (2005),
86 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol86/iss1/10