REVISED December 1, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41493

DARWIN KEITH BRIDGES; RODRIGO GONZALEZ; JESUS ALANIS,

Plaintiffs - Appellants

v.

EMPIRE SCAFFOLD, L.L.C.,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.

KING, Circuit Judge:

Defendant–Appellee Empire Scaffold, LLC, employed Plaintiffs–

Appellants Darwin Keith Bridges, Rodrigo Gonzalez, and Jesus Alanis to erect 

and dismantle scaffolding for the Motiva Crude Expansion Project. Bridges, 

Gonzalez, and Alanis sued Empire for failing to compensate them for pre-shift 

wait time under the Fair Labor Standards Act. The district court granted 

summary judgment to Empire, effectively holding that the pre-shift wait time 

at issue here is excluded from compensation under the Portal-to-Portal Act. 

We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

November 9, 2017

Lyle W. Cayce

Clerk

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I.

Motiva Enterprises, LLC (“Motiva”), is an oil refining and marketing 

joint venture that is owned by affiliates of Shell Oil Company and Saudi 

Aramco. Motiva undertook the Crude Expansion Project (“CEP”) in order to 

expand its Port Arthur Refinery and more than double the refinery’s previous 

capacity. At its peak, the project involved more than 14,000 workers. From 

approximately December 2010 to May 2012, Empire Scaffold, LLC (“Empire”), 

was hired to erect and dismantle scaffolding at the refinery as a part of the 

CEP.1 Empire’s employees worked in teams with six to ten individuals. Empire 

compensated its employees for scheduled shift times of 7:00 a.m. to 5:30 p.m. 

on Monday through Thursday and 7:00 a.m. to 3:30 p.m. on Friday. 

Empire required its employees to take buses from the Port Arthur Road 

Parking Lot to the refinery on a first-come, first-serve basis between 5:00 a.m. 

and 6:15 a.m. Empire’s policy was that an employee who missed the last bus 

at 6:15 a.m. would not be able to work until the next day. Empire did not allow 

the employees to access the refinery by any other means, such as riding in 

another contractor’s van. The purpose of this policy was to prevent chaos and 

congestion of vehicles at the refinery, as well as to keep the refinery secure.

The bus ride to the refinery took approximately 20 to 30 minutes. The bus 

dropped the employees off at Empire’s lunch tents, which were about threequarters of a mile inside the refinery and a few hundred yards away from the 

live units where the employees performed scaffolding. Empire required its 

employees to sign in at the lunch tents. Empire did not mandate anything 

else—such as work at the live units, safety meetings, or completing the job 

safety analysis paperwork—prior to 7:00 a.m. At 7:00 a.m., a horn sounded, 

 

1 Formally, Bechtel-Jacobs CEP Port Arthur Joint Venture contracted with Empire to 

provide services to Motiva. 

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commencing the shift time. Empire required its employees to wear personal 

protection equipment (“PPE”) upon reporting to work at the live units. The 

PPE included hard hats, goggles, fire-retardant clothing, steel-toed boots, H2S 

monitors,2 and safety glasses.

In November 2012, Empire’s employees and hundreds of workers for 

other contractors and subcontractors related to the CEP commenced litigation

against their employers. These workers generally asserted that, in violation of

the Fair Labor Standards Act of 1938 (“FLSA”), they were not paid for 

compensable time. In May 2013, the district court severed some of the claims 

related to the CEP and created the instant action against Empire. In the 

Fourth Amended Complaint, Darwin Keith Bridges, Rodrigo Gonzalez, and 

Jesus Alanis were listed as plaintiffs in this action, along with sixty other 

workers. About ten months after the severance, the district court referred the 

case to a magistrate judge. 

The workers then filed a motion for partial summary judgment, arguing 

that as a matter of law, Empire violated the FLSA by failing to compensate its 

workers for pre-shift time and to properly record their work hours. Empire also 

filed for summary judgment, contending that (1) it is not required under the 

FLSA and Portal-to-Portal Act of 1947 to compensate its workers for time spent 

riding the bus to the CEP, for pre- and post-shift activities, and for pre-shift 

wait time; (2) its record-keeping was proper; (3) the workers had not met their 

burden of proof with respect to their claims and damages; and (4) summary 

judgment was appropriate for workers who did not claim that they performed

certain work activities outside of their shifts. 

 

2 H2S monitors can detect hydrogen sulfide, which is a byproduct of refining crude oil. 

According to Empire’s employees, a H2S monitor was smaller than a deck of cards and could 

be clipped onto their attire.

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In March 2016, the magistrate judge recommended that (1) summary 

judgment be granted against all of the workers’ claims, except for Rene 

Chaires’s claim, for compensable time riding the bus to the CEP, (2) summary 

judgment be granted against all of the workers’ claims for time spent donning 

and doffing PPE, (3) summary judgment be granted in favor of Empire on the

improper timekeeping claim, and (4) summary judgment be denied with 

respect to all of the workers’ claims—except for the claims of Bridges, Gonzalez, 

and Alanis—for compensation for pre- and post-shift activities. Specifically, 

with respect to Bridges, Gonzalez, and Alanis, the magistrate judge found that 

they did not engage in pre-shift activities that could be considered 

compensable, such as scaffolding at the live units, attending safety meetings, 

and preparing job safety analysis paperwork. Both sides objected on several 

issues, but the district court adopted the magistrate judge’s report and 

recommendation, overruling all objections.

In April 2016, Bridges, Gonzalez, and Alanis appealed the district court’s 

decision, but this court, in August 2016, dismissed the appeal for lack of 

jurisdiction because final judgment had not been entered. Subsequently, they

sought reconsideration of the district court’s grant of summary judgment in 

favor of Empire or, alternatively, entry of final judgment as to their claims. 

The district court denied their motion for reconsideration but issued final 

judgment with respect to their claims. Bridges, Gonzalez, and Alanis then

timely appealed. They now argue that their pre-shift wait time at the refinery

is compensable under the FLSA.

II.

The issue in this case is whether the Portal-to-Portal Act excludes the 

pre-shift wait time of Bridges, Gonzalez, and Alanis from being compensable 

under the FLSA. We review the district court’s grant of summary judgment de 

novo. Halle v. Galliano Marine Serv., L.L.C., 855 F.3d 290, 293 (5th Cir. 2017) 

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(citing Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016)). 

Summary judgment is appropriate if “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56. “The mere existence of a scintilla of evidence in support of the 

plaintiff’s position will be insufficient; there must be evidence on which the 

jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986). We begin with an articulation of the relevant 

substantive law. 

Enacted in 1938, the FLSA established a minimum wage and overtime 

compensation for each hour worked over 40 hours in each workweek. 29 U.S.C. 

§§ 206(a), 207(a). Employers that violate these provisions can be held civilly 

liable for back-pay, liquidated damages, and attorney’s fees. Id. §§ 216(b)–(c). 

As the FLSA did not define “work” or “workweek,” the Supreme Court issued 

two decisions in the 1940s that interpreted these terms broadly. See Anderson 

v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946) (defining “workweek” 

to include “all time during which an employee is necessarily required to be on 

the employer’s premises”); Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 

321 U.S. 590, 598 (1944) (defining “work” as “physical or mental exertion 

(whether burdensome or not) controlled or required by the employer and 

pursued necessarily and primarily for the benefit of the employer and his 

business”). In 1947, Congress passed the Portal-to-Portal Act in order to curb 

the flood of litigation that followed these decisions. See Integrity Staffing Sols., 

Inc. v. Busk, 135 S. Ct. 513, 516–17 (2014). This Act exempts employers from 

liability for claims based on the following activities:

(1) walking, riding, or traveling to and from the actual place of 

performance of the principal activity or activities which such 

employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said 

principal activity or activities,

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which occur either prior to the time on any particular workday at 

which such employee commences, or subsequent to the time on any 

particular workday at which he ceases, such principal activity or 

activities.

29 U.S.C. § 254(a).

In Steiner v. Mitchell, 350 U.S. 247 (1956), the Supreme Court 

determined that the Portal-to-Portal Act does not exempt “activities performed 

either before or after the regular work shift . . . if those activities are an integral 

and indispensable part of the principal activities for which covered workmen 

are employed and are not specifically excluded by” § 254(a)(1) (i.e., walking, 

riding, or traveling to and from the place of performance). Id. at 256. The Court 

has interpreted the term “principal activity or activities” in the statute to 

include all activities that are an “integral and indispensable part of the 

principal activities.” Busk, 135 S. Ct. at 517 (quoting IBP, Inc. v. Alvarez, 546 

U.S. 21, 29–30 (2005)); see also 29 C.F.R. § 790.8(b) (embracing this 

interpretation of the term). “An activity is therefore integral and indispensable 

to the principal activities that an employee is employed to perform if it is an 

intrinsic element of those activities and one with which the employee cannot 

dispense if he is to perform his principal activities.” Busk, 135 S. Ct. at 517.

The Court has identified some activities that satisfy this test. In Steiner,

it held that changing clothes and showering was integral and indispensable to 

the workers’ principal activity of manufacturing automotive-type wet-storage 

batteries, which involved dangerous chemicals and fumes.3 350 U.S. at 249–

50, 256. In Mitchell v. King Packing Co., 350 U.S. 260 (1956), it concluded that 

 

3 In Steiner, the employer conceded that the clothes-changing and showering activities 

of the employees were integral and indispensable to the performance of their productive work

but contended that these activities were not principal activities under the Portal-to-Portal 

Act. 350 U.S. at 251–52. The Court rejected the employer’s argument and instead agreed with 

the Sixth Circuit that principal activities under the Act embraced activities that are an 

integral and indispensable part of the principal activities. See id. at 252–53.

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knife-sharpening activities were integral and indispensable to the employees’

work at the meat-packing plant. Id. at 262–63. The knives needed to be 

sharpened “for the proper performance of the work,” and a “dull knife would 

slow down production.” Id. at 262. 

The Court has also decided that certain activities do not fulfill the test. 

In IBP, it held that time spent waiting to don protective gear (not the time 

spent actually donning the gear) was not integral and indispensable to the 

production workers’ principal activities of cutting and bagging meat. See 546 

U.S. at 30, 42. The predonning wait time was “two steps removed from the 

productive activity on the assembly line.” Id. at 42. In Busk, the Court 

concluded that mandatory security screenings were not integral and 

indispensable to the warehouse employees’ work of retrieving and packaging 

products for shipment to customers. See 135 S. Ct. at 515, 518. It emphasized 

that the test turns on whether the activity in question is “tied to the productive 

work that the employee is employed to perform.” Id. at 519.

Here, the compensability of the pre-shift wait time of Bridges, Gonzalez, 

and Alanis under the Portal-to-Portal Act turns on whether this wait time was

integral and indispensable to the principal activities which they were 

employed to perform. In this context, the employees’ principal activities—as 

Empire has acknowledged—included erecting and dismantling scaffolding (i.e., 

the substantive work that Empire was hired to do), safety meetings, and 

completing joint safety analysis paperwork. Empire’s policy was not to begin 

such activities until after 7:00 a.m., during the compensated shift time. While 

reporting to the right location on time at 7:00 a.m. was intrinsic to efficiently

implementing the productive work, the time spent waiting for principal 

activities to begin at 7:00 a.m. was not. The waiting itself was neither tied to 

nor necessary to the erection and dismantling of scaffolding—the work that the 

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Appellants were employed to perform. Therefore, the wait time here is similar 

to the predonning wait time in IBP and thus not compensable. 

Additionally, unlike some of their coworkers, Bridges, Gonzalez, and 

Alanis have not claimed that they participated in principal activities prior to 

7:00 a.m. Alanis testified that during the pre-shift wait time, he did “[n]othing” 

and would “chat with [his] colleagues.” Bridges stated that he used his time to 

smoke. Gonzalez testified that he just sat down and waited for 7:00 a.m. Thus, 

none of these three employees has created a genuine dispute of material fact 

with respect to performing principal activities prior to 7:00 a.m. 

The Appellants argue that the predominant benefit test is the correct 

legal framework to apply in analyzing the compensability of the pre-shift wait 

time. They base their contention on four cases: (1) Armour & Co. v. Wantock, 

323 U.S. 126 (1944); (2) Skidmore v. Swift & Co., 323 U.S. 134 (1944); 

(3) Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th Cir. 1990); and (4) Vega v. 

Gasper, 36 F.3d 417 (5th Cir. 1994). The predominant benefit test focuses on 

whether the wait time primarily benefits the employer. See, e.g., Mireles, 899

F.2d at 1411 (citing Halferty v. Pulse Drug Co., 864 F.2d 1185, 1189 (5th Cir.

1989)). Under this test, when an employer requires an employee to report at a 

specific time and the employee cannot perform work at that time for some 

reason beyond his control, the wait time predominantly benefits the employer. 

See, e.g., id. at 1414 (first citing 29 C.F.R. § 790.7(h); then citing Halferty, 864 

F.2d at 1189). Bridges, Gonzalez, and Alanis contend that Empire required its 

employees to report to the refinery before the 7:00 a.m. shift and that the wait 

time predominantly benefited the employer because employees were 

surrounded by hazardous conditions and had to follow safety procedures.4

 

4 On appeal, Bridges, Gonzalez, and Alanis do not challenge the compensability of the 

time spent riding the bus or donning their PPE. They do contest the district court’s finding 

that the handling and use of their PPE was not tied to productive work, but it appears that 

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We are not persuaded by their argument. Armour, Skidmore, Mireles, 

and Vega were all decided prior to Busk, and they are inapposite here. Busk

conveys that whether an activity is integral and indispensable to an employee’s 

principal activities does not turn on whether the activity benefits the employer 

or whether the employer requires the activity. See Busk, 135 S. Ct. at 519; see 

also Balestrieri v. Menlo Park Fire Prot. Dist., 800 F.3d 1094, 1101 (9th Cir. 

2015) (“Under [Busk], it is not enough to make activity compensable under the 

[FLSA] that the employer requires it and it is done for the benefit of the 

employer.”). The Court expressly stated that “[i]f the test could be satisfied 

merely by the fact that an employer required an activity, it would sweep into 

‘principal activities’ the very activities that the Portal–to–Portal Act was 

designed to address.”5 Busk, 135 S. Ct. at 519. The Court went on to state that 

“[a] test that turns on whether the activity is for the benefit of the employer is 

similarly overbroad.” Id.

 

they contest this finding in order to bolster their contention that having on their PPE 

provides support that their wait time is compensable. As Bridges, Gonzalez, and Alanis focus

on the compensability of only the pre-shift wait time in their brief, any argument concerning

the compensability of the time spent donning their PPE is forfeited. See Sanders v. Unum 

Life Ins. Co. of Am., 553 F.3d 922, 926 (5th Cir. 2008) (“‘A party waives an issue if he fails to 

adequately brief it’ on appeal.” (quoting Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th 

Cir. 2008))). 5 The Department of Labor regulation 29 C.F.R. § 790.7(h) states: 

Where, however, an employee is required by his employer to report at a 

particular hour at his workbench or other place where he performs his 

principal activity, if the employee is there at that hour ready and willing to 

work but for some reason beyond his control there is no work for him to perform 

until some time has elapsed, waiting for work would be an integral part of the 

employee’s principal activities.

It is unclear how Busk affects this regulation, but we need not and do not decide that today. 

The factual scenario at hand does not fall within the scope of 29 C.F.R. § 790.7(h). While 

Empire required its employees to take a bus to the refinery by the latest at 6:15 a.m., it did 

not require them to be at the live work sites or other places where principal activities were

performed until 7:00 a.m. Here, Bridges, Gonzalez, and Alanis were waiting prior to their 

scheduled shifts, not during their shifts. Cf. Mireles, 899 F.2d at 1410, 1414.

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Armour and Skidmore were two Supreme Court cases that focused on 

the compensability of firefighters’ on-call wait time under the FLSA. In 

Armour, the Court articulated a test for determining whether wait time is 

compensable; that test depends on “[w]hether time is spent predominantly for 

the employer’s benefit or for the employee’s.” 323 U.S. at 133. In Skidmore, the 

Court stated that whether wait time is compensable is a question of fact. 323 

U.S. at 136–37. These cases are inapplicable to the current case for two 

reasons. First, Armour and Skidmore were both decided prior to Busk and the 

Portal-to-Portal Act. Second, they are factually distinguishable. In both cases, 

the firefighters were employed to wait in order to respond to fires. See Armour, 

323 U.S. at 127; Skidmore, 323 U.S. at 135. Here, Bridges, Gonzalez, and 

Alanis were not employed to wait for their shifts to begin at 7:00 a.m.

In Mireles, we held that assembly line workers’ wait time at a frozen food 

packaging facility was compensable if the employees could not use that time 

effectively for their own purposes. See 899 F.2d at 1410–14. Mireles is 

inapposite here because it involved wait time during the workers’ scheduled 

shifts and the Portal-to-Portal Act was not at issue. Id. at 1410, 1414. In 

contrast, this case involves wait time prior to the employees’ scheduled shifts, 

and the parties are debating over the applicability of the Portal-to-Portal Act. 

Finally, in Vega, we remanded the case to the district court so that additional 

findings related to the purpose of the workers’ wait time prior to picking chiles

could be made in order to determine whether the wait time could be considered 

a principal activity under the Portal-to-Portal Act. 36 F.3d at 426–27. There is 

some language in Vega that suggests whether an activity is covered under this 

Act turns on whether the wait predominantly benefits the employer. See id. at 

425–26. However, that language was not necessary to our actual disposition of 

Vega and has been effectively abrogated by Busk. See 135 S. Ct. at 519.

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In sum, the integral and indispensable test is the relevant test for 

determining the compensability of the Appellants’ pre-shift wait time. As this

preliminary wait time is not intrinsic to their principal activities, it is not 

compensable under the Portal-to-Portal Act. 

III. 

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

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