An article published in the American Bar Association Journal of Labor & Employment Law argues that the Supreme Court’s long-standing “integral and indispensable” exception to the Portal-to-Portal Act—first articulated in Steiner v. Mitchell—has become unworkable and inconsistent with the statute’s plain language. The article, “The Case for Overruling Steiner v. Mitchell: An Unworkable Judicial Doctrine in Conflict with the Portal-to-Portal Act’s Plain Language,” contends that decades of wage-and-hour litigation stem from a judicial gloss that Congress never intended when it enacted the Portal-to-Portal Act in 1947.
As the ABA article explains, the Portal-to-Portal Act was designed to limit employer liability under the Fair Labor Standards Act by excluding preliminary and postliminary activities—such as travel to a worksite or certain preparatory tasks—from compensable time. In Steiner v. Mitchell, however, the Supreme Court introduced an exception permitting compensation where such activities are deemed “integral and indispensable” to an employee’s principal work. According to the authors, this exception has produced inconsistent judicial outcomes and persistent uncertainty, particularly in cases involving donning and doffing protective gear, security screenings, and pre-shift operational requirements.
While the debate may appear academic, the ABA analysis highlights significant real-world governance and compliance implications. Courts across jurisdictions have struggled to apply the “integral and indispensable” test consistently, resulting in unpredictable wage-and-hour exposure and a steady stream of collective and class actions under the FLSA. Employers are often left to navigate compliance frameworks that depend less on statutory clarity and more on evolving, fact-intensive judicial interpretations.
From a legal and risk-management perspective, this doctrinal instability carries meaningful exposure: timekeeping and pay practices that appear compliant in one jurisdiction may trigger liability in another; internal policies addressing pre- and post-shift activities can become focal points in litigation; and retrospective liability for unpaid wages, liquidated damages, and attorneys’ fees can be substantial. The ABA article argues that overruling Steiner would restore predictability by aligning compensability determinations with the Portal-to-Portal Act’s original statutory boundaries.
The article underscores the importance of closely monitoring wage-and-hour jurisprudence, maintaining conservative compliance practices, and documenting the business rationale behind compensability decisions—particularly in industries with significant pre-shift or post-shift activity.
Outside Legal Counsel LLP advises employers, employees, and boards on wage-and-hour compliance, Portal-to-Portal Act exposure, FLSA litigation strategy, and risk mitigation arising from evolving judicial interpretations. Contact ustoday.
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