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Albrecht v. Wackenhut Corp.

September 24, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiffs are present and former employees of the defendant, The Wackenhut Corporation ("Wackenhut" and/or "defendant"), who are or were employed as security guards at the Ginna Nuclear Power Plant in Ontario, New York ("Ginna"). Plaintiffs bring this action alleging violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq . ("FLSA") and violations of New York Labor Law ("NYLL") seeking additional compensation for certain activities that occurred before and after their scheduled work shifts and workdays. Specifically, plaintiffs allege that Wackenhut violated the FLSA and the NYLL by failing to pay them for time spent arming up and checking through security and arming down at the Ginna facility.

Defendant moves for summary judgment*fn1 contending that the federal and wage hour laws recognize that employers are not required to compensate employees for time spent traveling or walking to their assigned work stations and/or engaging in other activities that are preliminary or postliminary to the performance of their assigned jobs. In addition, Wackenhut argues that the Second Circuit has held that time spent clearing security and performing preliminary tasks at a nuclear power plant is not compensable under the FLSA and NYLL. Wackenhut also claims that federal courts recognize that preliminary and postliminary activities can be excluded from compensable time where the time spent performing the activities is de minimis . Further, defendant contends that an additional and independent ground exists for dismissal of plaintiffs' wage and hour claims after March 1, 2006, since it is undisputed that the plaintiffs were compensated for all time spent arming up and down after that date.

Plaintiffs oppose defendant's motion and cross-move for partial summary judgment on the issue of liability. Plaintiffs contend that the activities at issue are integral and indispensable to their work and accordingly are compensable. In addition, contrary to Wackenhut's assertion, plaintiffs argue that the time required to perform the tasks at issue in this case is not de minimis . Finally, plaintiffs assert that their claim for failure to pay overtime compensation must await further discovery. For the reasons set forth below, I grant defendant's motion for summary judgment, and deny plaintiffs' cross-motion for partial summary judgment.


On March 26, 2007, plaintiffs*fn2 filed a Complaint alleging violations of the FLSA and the NYLL. See Docket # 1. In their Second Amended Complaint, a total of 115 former and current security guards seek compensation for time spent engaging in three specific activities namely "arming up and checking through security*fn3 and arming down." See Docket # 28, ¶ 13. In addition, plaintiffs represent that the total amount of time for these activities, which they claim is at issue in this case, is fifteen minutes. Defendant contends, and the records evidence shows, that the time at issue is substantially less than fifteen minutes.

Ginna is a single unit nuclear generating station located along the shores of Lake Ontario in the Village of Ontario, New York. The facility is regulated by the Nuclear Regulatory Commission and has a secured area into which only authorized individuals have permission to enter. Wackenhut has provided security services at Ginna since 1978. To gain access into the secured area, all employees, contractors, and visitors to the site must pass through a security clearance process located at Ginna's Security building.

A. Schedules and Duties of Wackenhut Guards

Wackenhut guards staff and monitor the security clearance process at different posts located at the main entrance to the Security Building. In addition, the guards provide security services at different posts located around the facility. The guards at these posts are responsible for monitoring security clearance equipment, conducting inspections and searches of persons, materials and vehicles entering the protected area of the plant, patrolling the protected area, monitoring internal and external security alarms and escorting persons and/or verifying the identity of persons accessing the protected area. These duties can be performed by armed or unarmed guards. Plaintiffs contend that they are also charged with functions of enforcing against sabotage, espionage and other subversive activities. Defendant states that while Ginna guards are armed, no guard has ever had to discharge a weapon in the performance of his or her duties.

Wackenhut provides security services at the facility on a twenty-four hour basis and currently operates on three standard eight-hour shifts starting at 6:30 a.m., 2:30 p.m. and 10:30 p.m., respectively. The work schedules are issued by Wackenhut's Operations Supervisor, who is currently Christopher Hook. Prior to June 2003, security guards could be assigned to one of the eight-hour shifts or to a twelve-hour shift that started at either 6:30 a.m. or 6:30 p.m.

B. Arming Up and Reporting to Post Prior to March 1, 2006

The guards report to work in uniform, which consists of blue pants, a blue shirt, boots, a hat, jacket and other equipment. The guards are free to wear their uniforms home and return to work in uniform on their next scheduled workday. Before March 1, 2006 guards were permitted to leave Ginna with most of the equipment issued by Wackenhut, including their gun belts, radio pouches and bandoliers. The only equipment that guards were required to leave on site was their service revolver, which was kept in the armory, and a handheld radio, which was stored in a nearby charging unit. Plaintiffs contend that service revolvers and handheld radios were stored in various locations on the Ginna facility at different relevant time periods.

There is no dispute that the arming up and arming down process prior to March 1, 2006 took place in the room in which the armory was located. According to Wackenhut, after clearing security, the guards were able to go directly to the room in which their weapons and radios were stored to retrieve them before reporting to their assigned post. Plaintiffs claim that upon clearing security, the guards were required to first report to the locker room to obtain ammunition, gun belts, radio pouches and bandoliers, before obtaining their firearms and radios in the armory.

The process of arming up began with a guard identifying the serial number of his or her weapon and would then retrieve the weapon in a clearing barrel from a supervisor in the armory. The guard would then follow a series of instructions from the supervisor concerning the process of loading and holstering his or her weapon. The arming up process was complete when the guard holstered the weapon. The deposition testimony of several plaintiffs confirm that it took thirty seconds to less than a minute from the time when a security guard identified the serial number on his weapon to the time the weapon was holstered. The arming down process was essentially the same process in reverse and was completed in the same amount of time. After retrieving their weapon, guards obtained a handheld radio at a location in the same area as the armory, at which time each signed a log to identify which radio they took. It is undisputed that the arming up and arming down process was routine, relatively effortless and could be completed in a short time frame.

Upon completion of the arming up process and retrieval of the handheld radio, guards then reported to their first assigned post. Based on the deposition testimony, it takes less than thirty seconds to walk from the armory, which is currently located in the guard house, to many of the posts. The remaining posts can be reached by a person walking at a normal pace in one to five minutes. Plaintiffs claim that the amount of time to arm up and arm down depends upon various factors. Further, plaintiffs submitted four affidavits in opposition to Wackenhut's summary judgment motion alleging that it took them between eight minutes to fifteen minutes to complete pre-shift activities prior to March 1, 2006. However, these alleged time ranges are not consistent with the deposition testimony of various plaintiffs deposed by defendant.*fn4

According to defendant, security guards were not asked to perform any work before the start of their regularly-scheduled shifts. Before March 1, 2006, guards were compensated for all work time beginning with the start of their scheduled shift but guards were not required to arrive on site at any specified time prior to their scheduled shift to be considered on time. Plaintiffs contend that they were required to report to their post 15 minutes before the start of their shift but were not compensated until their shift actually started. Wackenhut argues that plaintiffs did not have to arrive at the site at any particular time prior to the start of their shift to be on time. In fact, prior to March 1, 2006, defendant was aware of many occasions on which guards completed the security clearance process just a minute or two before the start of their ...

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