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The United States has a long, complicated relationship with juries. While particular jury verdicts encounter disbelief or even hostility, the system itself is generally praised as a protector of justice and other key democratic values. Yet even the staunchest defenders of the jury system admit it is imperfect, and very few expect the system to be without fault. Often, it falls to the courts to recognize the limitations of the jury system, and in particular to protect verdicts from demands of perfection. Expecting faultless verdicts would threaten the integrity of the system itself: as Learned Hand once wrote, requiring perfection would turn judges into “Penelopes,” constantly reconsidering verdicts until they were delivered by an ideal jury.
In an effort to preserve the system’s integrity, the law has frequently sought to protect juries and the verdicts they deliver. Nowhere is this goal more apparent than in the long-standing “no-impeachment rule,” codified in Federal Rule of Evidence 606(b), which generally precludes the introduction of evidence related to the validity of a verdict. Considered essential to ensuring the jury’s independence and guaranteeing the right to a fair trial, the no-impeachment rule has nevertheless come under significant attack, culminating in the Supreme Court’s recent decision in Peña-Rodriguez v. Colorado. By ruling that Rule 606(b) is incompatible with the Sixth Amendment under certain circumstances, the Court continued the long line of conflicting opinions on the Rule and the common law tradition that supports it.
The problem confronting Peña-Rodriguez—as well as other opinions regarding Rule 606(b)—is that there is not one common law tradition supporting the adopted no-impeachment rule. Rather, it is the result of an uneasy synthesis of two common law paths, directed toward similar goals yet destined to conflict. Peña-Rodriguez, then, does not represent a final decision on an issue that has been plaguing federal courts and commentators for years, but rather another attempt to draw principled distinctions from a Rule confronted by internal tension.
The no-impeachment rule’s history shows the difficulty in striking a balance between protecting crucial interests—such as finality and deliberative secrecy—and ensuring that deliberations are free from misconduct. Federal Rule of Evidence 606(b), far from uniting two competing interpretations, has instead led to muddied distinctions and inconsistent judgments. More troubling, Rule 606(b) has failed to protect important interests more consistently than other, more permissive interpretations of the no-impeachment rule.
This Note seeks to explain these shortcomings by evaluating the common law history of the Rule and decisions from federal courts—including the Supreme Court—that have sought to clarify it. It begins in the years before the drafting of the Federal Rules, when different jurisdictions sought different ways to reconcile the values of jury deliberation and the threat of juror misconduct. It then describes the process that created Federal Rule 606(b) and the first major decision to analyze the Rule, Tanner v. United States. Next, it notes the analytical difficulties the Tanner decision created, and traces the issues courts struggled with until the announcement of two additional noteworthy Supreme Court decisions, Warger v. Shauers and Peña-Rodriguez v. Colorado. It concludes by offering solutions to the difficulties raised by Rule 606(b) and advocating for an approach that would better guard against juror misconduct while still protecting the policies the Rule purports to serve.
Although now considered one of the bedrocks of contemporary criminal procedure, the secrecy of jury deliberations may have arisen as a historical accident. In fact, many British courts thwarted deliberative secrecy by admitting juror testimony to impeach verdicts until the late eighteenth century. Before the American Revolution, the common law of both England and the American colonies liberally allowed jurors’ testimony and affidavits, frequently without any questions or hesitation.
However, this relatively liberal admissibility convention ended in 1785 with Lord Mansfield’s opinion in Vaise v. Delaval, where the court excluded a juror’s testimony that the verdict had been reached by a game of chance. The resulting rule, later known as Mansfield’s Rule, prohibited jurors from testifying about either their subjective mental processes or events that occurred during deliberations. Rooted in the doctrine that a witness should not be heard to allege his own moral turpitude, the Mansfield Rule sharply distinguished between testimony about deliberations by a juror (which is inadmissible) and testimony about deliberations by a non-juror (which is admissible). For the first time, English courts adopted a rule protecting the secrecy of the jury’s deliberations to avoid the corruption that would result from inquiring into verdicts. Mansfield’s Rule thus fundamentally transformed evidence laws by routinely excluding evidence that would have been admissible a scarce half-century before.
The Mansfield Rule, however, was not free from criticism or condemnation. Wigmore, for one, commented that the Rule was “neither strictly correct as a statement of the acknowledged law nor at all defensible upon any principle in this unqualified form. It is a mere shibboleth and has no intrinsic signification whatever.” Perhaps because of these criticisms, adherence to the Mansfield Rule has never been universal in American courts. Furthermore, even courts that used the Rule rarely interpreted it strictly. Indeed, many jurisdictions in the United States substantially reduced and refined the Rule by allowing particular kinds of testimony to identify and correct flawed verdicts. Eventually, two general departures from the Mansfield Rule solidified in American courts: the federal approach and the Iowa Rule.
The so-called federal approach to the no-impeachment rule, like the original Mansfield Rule, accepted that the finality interests protected by a robust no-impeachment rule outweighed the risks of juror misconduct. Unlike the Mansfield Rule’s complete ban, however, the federal approach permitted juror testimony offered to show that an “extraneous matter” had influenced the jury, while it continued to prohibit evidence regarding how such extraneous matters had influenced the jury. The federal approach thus refused to admit evidence of quotient verdicts, decisions to abide a majority vote, misinterpretation of instructions, or misuse of evidence; however, courts could hear evidence of improper juror contacts with bailiffs or parties, the introduction of unauthorized evidence into the jury room, or personal investigations of the facts.
A more substantial challenge to the Mansfield Rule—indeed, a “direct repost to Mansfield’s Rule”—was issued by the Iowa Supreme Court in Wright v. Illinois Central and Mississippi Telegraph Co. By focusing on whether the “alleged [juror] misconduct was sufficiently litigable to justify threatening the finality of verdicts,” the court declared a rule that greatly expanded the scope of the no-impeachment rule. Under the resulting Iowa Rule, affidavits by jurors would be admitted “to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself . . . .” Thus, instead of allowing only evidence of extraneous misconduct, the Iowa Rule allowed evidence of any misconduct—including, crucially, misconduct that occurred inside the deliberation room—while still maintaining an exclusion on how the evidence impacted the jurors’ decisions.
The Wright court articulated three reasons in support of its position. First, the court argued that, in contrast to events or discussions that occurred during deliberation, matters personal to a juror were incapable of verification by objective proof; thus, evidence of the former should be admitted and evidence of the latter excluded. Second, the court noted that receiving affidavits of juror misconduct would positively affect the deliberations by creating the possibility of exposing such improprieties. Finally, the court argued that while jurors who acted legitimately deserved the protection of the court, those who engaged in misconduct deserved no such protection and could properly be called to be witnesses to their own impropriety.
By emphasizing the importance of the quality of the jury’s decision-making process and making that process open to scrutiny by the courts, the Iowa court rejected the principles supporting the federal approach: finality ceased to be the paramount concern. The Iowa Rule instead reflected a desire to balance finality with fairness by providing relief in cases of clear and objectively verifiable juror misconduct. This shift, however, would lead to vacillating treatment by the Supreme Court of the United States on the issue of whether to admit juror affidavits impeaching a verdict.
Some forty years later, the Supreme Court again considered modifications to the no-impeachment rule in Mattox v. United States. Mattox not only complained that jurors had read a newspaper account during deliberations, but also sought to introduce juror affidavits showing that the bailiff had engaged in misconduct. While acknowledging the reasoning behind a policy supporting a blanket ban on juror testimony, the Court maintained that such a policy might “create an exception to its own rule” when the interest of justice commanded. The Court found such an exception existed in Mattox because the juror misconduct was the effect of external causes, i.e., extraneous prejudicial information and improper outside influences. Clearly, the Court’s decision in Mattox indicated its adoption of the federal approach to the no-impeachment rule.
However, the Mattox Court also argued for changes to the no-impeachment rule in language similar to, and possibly informed by, the Iowa Rule. Not only did the Court determine that the affidavits were admissible because “[t]hey tended to prove something which did not essentially inhere in the verdict,” it also argued that evidence of overt acts should be admitted because such acts are accessible “to the knowledge of all the jury . . . .” The Iowa Rule’s influence on the Supreme Court’s interpretation of the no-impeachment rule reached its height twenty years later in Hyde v. United States, where the Court prohibited juror testimony about “matters which essentially inhere[d] in the verdict itself . . . .” At the turn of the twentieth century, then, it was clear that even the Supreme Court was struggling with the principles and contours of the no-impeachment rule.
While the Supreme Court struggled to develop a consistent jurisprudence around the no-impeachment rule, drafters of the Model Code of Evidence and the Uniform Rules of Evidence were coalescing around provisions that strongly resembled the Iowa Rule. Rule 301 of the Model Code of Evidence allowed witnesses—“including every member of the jury”—to testify about “any material matter,” including statements about jurors’ conduct or condition, even if they occurred during deliberations. The only limitation placed on admissibility was that no evidence was to be admitted “concerning the effect which anything had upon the mind of a juror as tending to cause him to assent to or dissent from the verdict . . . or concerning the mental processes by which it was reached.” Seeking to distinguish the Rule from the English common law and the majority of American cases, the drafters declared that “[t]he Rule permits the juror to testify to every relevant matter except his mental processes and the effect which any act or event had upon” the determination of the verdict. An accompanying case illustration explained that, under the rule, evidence that jurors reached a verdict by a coin toss would be admissible, while evidence that a juror misunderstood the jury instructions or agreed to a verdict because she wanted to go home would be inadmissible.
A similar development occurred in the Uniform Rules of Evidence, where two separate rules addressed the no-impeachment rule. Rule 41 disallowed the introduction of any evidence that would “show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent or dissent from the verdict.” Rule 44 provided that Rule 41 “shall not be construed to exempt a juror from testifying as a witness . . . to conditions or occurrences either within or outside the jury room having a material bearing on the validity of the verdict.” The comments explained that the Rules imposed no limitations “on testimony about conditions or events bearing on the verdict” and allowed for juror testimony on any “proper subject for judicial inquiry.” The comments further emphasized that Rule 44 was included out of an “abundance of caution” to make it clear that the rules imposed no additional limitations.
It was against this backdrop of inconsistency and conflict that the Federal Rules of Evidence were drafted in 1975. The Supreme Court had struggled with the limits of the no-impeachment rule, and its opinions reflected the tensions between Mansfield’s Rule, the Iowa Rule, and the federal approach. Those who sought to codify rules of evidence tended toward the more permissive Iowa Rule, while still acknowledging that most American cases advocated a stricter rule more in line with the federal approach. These conflicts would plague Rule 606(b)’s drafting process and the judicial opinions that sought to explain and clarify the Rule. Thus, while courts have successfully articulated the policies supporting the Rule, they have struggled to apply it in a principled and consistent way.
When the Judicial Conference formulated its approach to the no-impeachment rule, it drew from “an extensive and still-vibrant common law debate.” Seeking to protect the policies supporting the no-impeachment rule while also avoiding “irregularity and injustice,” the Rule’s initial proposal “would have permitted much greater leeway for jurors to impeach their verdict” than under the federal approach. In strikingly similar language to the Uniform Rules of Evidence, the Advisory Committee’s proposed Rule excluded juror testimony only where it concerned the effect of anything upon a juror’s mind or emotions or the juror’s mental processes. Through its explicit reference to Wright, the Committee indicated its proposed Rule was based on a long-standing precedent precluding evidence concerning jurors’ mental processes, while permitting evidence concerning conditions or occurrences both inside and outside the jury room.
Reluctant to adopt such a far-reaching rule, the Supreme Court recommended changes to the Advisory Committee’s draft to bring the Rule closer to the federal approach it advocated in Pless. When the Committee presented the new draft to the House, however, it was rejected because “it limited jury testimony to an unnecessary degree.” Referring to the Advisory Committee’s original draft, the House emphasized that jurors were the only people “who know what really happened” during deliberations. The House believed that allowing jurors to testify about objective instances of misconduct involved “no particular hazard” to values such as finality and free discussion, further noting that twelve states allowed such testimony. The House therefore recommended adopting the Advisory Committee’s original draft and sent the Rule forward to the Senate.
Criticism of the House rule also came from the Justice Department and Senator John McClellan. Senator McClellan suggested that overturning verdicts based on bias would lead to a flood of litigation that would damage the justice system, and he expressed disbelief that it would be possible to conduct trials—particularly criminal prosecutions—“if every verdict were followed by a post-trial hearing into the conduct of the juror’s deliberations.” The Senate Judiciary Committee echoed this concern, fearing that jurors would be unable to function effectively if their deliberations were scrutinized. Accordingly, “[i]n the interest of protecting the jury system and the citizens who make it work,” the Senate rejected the House proposal and recommended adoption of the Supreme Court’s version.
[(2)] whether any outside influence was improperly brought to bear upon any juror.
While Congress believed that it was merely codifying common law principles about deliberative secrecy, the changes from the Advisory Committee’s first draft to the final version expanded the Rule’s exclusionary impact significantly. Though seemingly based on the federal approach, the Rule also seemed broader than any previous common law doctrine because it also excluded juror testimony that would be prohibited for some other reason, such as hearsay. It is true that Rule 606(b)’s exceptions are consistent with a long-held desire to shield the jury from outside influences in order to protect the legitimacy of the system itself. It is equally true, however, that there was also a vibrant common law tradition that sought to balance the importance of deliberative secrecy with the costs of juror misconduct. Nor were these competing common law traditions a relic of the distant past. As seen above, the Iowa Rule informed both the Advisory Committee and the House Judiciary Committee in writing Rule 606(b). Rule 606(b) may indeed amount to a conservative, modern-day restatement of an old principle, but the challenges of the federal approach created difficulties for the Supreme Court as it sought—and continues to seek—the proper contours of Rule 606(b).
The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel. Moreover, jurors are observable to each other, and may report inappropriate juror behavior to the court before they render a verdict. Finally, after the trial a party may seek to impeach the verdict by non-juror evidence of misconduct.
Justice Marshall’s concurrence in part and dissent in part illustrated the divergent common law traditions that continued to animate the debate about the proper scope of Rule 606(b). Despite readily acknowledging the important policy considerations that supported the no-impeachment rule, Justice Marshall used language from the Advisory Committee notes to show that courts and commentators had also recognized that such a stringent interpretation could “only promote irregularity and injustice.” Furthermore, the majority’s interpretation of Rule 606(b) as applying an absolute bar on testimony was not supported by the text. According to the text, the Rule only excluded juror testimony related to the jury’s deliberations, and even this exclusion is limited to excluding testimony about certain juror conduct that has no verifiable manifestations. Since the juror misconduct alleged in Tanner occurred before deliberations had begun and involved conduct that was unquestionably verifiable, neither of these prohibitions should apply.
As Justice Marshall’s opinion indicates, people questioned the adequacy of the Tanner protections as soon as the case was decided. Criticism is particularly pointed regarding the adequacy of the voir dire “protection,” for three reasons. First, the power of voir dire depends greatly on how the process itself is conducted and to what extent certain issues are probed, a decision that largely lies within the discretion of the trial judge. Second, even where counsel conducts the questioning, strategic considerations may advise against asking the precise sorts of questions that are required to delve into jurors’ potential biases and prejudices. What’s more, only a highly skilled lawyer can craft questions that are specific enough to elicit meaningful answers but generalized enough to avoid focusing the voir dire on something like racial prejudice. Third, even when highly skilled counsel conduct voir dire, jurors may choose to conceal information regarding their biases, especially where something like racial bias is involved. Not only are jurors unlikely to willingly reveal their known biases and prejudices, many jurors are completely unaware of such biases, and honestly believe they can be fair and impartial.
There is also a significant analytical problem plaguing the rule adopted by Tanner. While the Court correctly identified the policies that underlie the general bar on juror testimony—fullness and frankness of deliberations, protecting jurors from harassment, ensuring the legitimacy of the jury system, and promoting finality of verdicts—the internal/external framework it developed does not always serve those policies. Consider, for instance, protecting and promoting deliberative secrecy. Even under the Iowa Rule—the most permissive form of the no-impeachment rule in use—courts’ inquiries into “internal events” allow jurors to testify only about an objective act of misconduct while excluding testimony about the misconduct’s effect. It is hard to understand why applying this more permissive interpretation to other forms of “internal” misconduct would significantly threaten the secrecy of deliberations Tanner seeks to protect. Additionally, consider the goal of shielding jurors from postverdict harassment. Once again, the internal/external framework does little to promote this goal: because jurors may testify about external influences or extraneous information, litigants still have incentives to contact and interview jurors. Not only does the Tanner framework fail to achieve these policies better than other interpretations of the no-impeachment rule, it also tends to over-exclude evidence, resulting in more misconduct going unheard and unrepaired.
For years following Tanner, federal circuit courts struggled with applying the opinion’s main findings to the cases that came before them. Significant circuit splits on the adequacy of voir dire and applying the internal/external framework to questions of racial prejudice resulted in two important Supreme Court decisions regarding Rule 606(b). However, these two cases—Warger v. Shauers and Peña-Rodriguez v. Colorado—suffer from the same interpretive difficulties that have long confronted the Supreme Court, and they further illustrate the fundamental tensions that make Rule 606(b) largely unworkable going forward.
Because Tanner justified an expansive no-impeachment rule based on the idea that voir dire could protect defendants, it would stand to reason that when jurors lie during voir dire, courts should be more permissive toward admitting evidence of juror misconduct. Yet circuit courts confronted with this situation have ruled evidence of juror misconduct inadmissible, despite the apparent infirmity of the voir dire “protection.” In Williams v. Price, the defendant sought to introduce evidence that the jurors lied during voir dire when they denied their racial prejudice. During the voir dire proceedings, the trial court asked two questions regarding racial bias, and all the selected jurors’ answers indicated that they had no racial biases. In his appeal, however, Williams relied on an affidavit submitted by a juror who alleged that other jurors “made remarks that suggested acute racial bias.” Williams argued that the courts were obligated to consider the juror’s affidavit testimony, because the no-impeachment rule could not be applied to evidence that would support a claim of juror misconduct committed during voir dire.
In a decision authored by then-Judge Alito, the court rejected this claim. If the argument were correct, the court reasoned, “a party could call jury members to testify about statements made during actual jury deliberations so long as the purpose for introducing the evidence was to show that a juror had lied during voir dire.” Such a claim clearly fell within Rule 606(b)’s prohibition on juror testimony “as to any matter or statement occurring during the course of the jury’s deliberations.” While emphasizing the limited scope of the court’s holding, the opinion nevertheless suggested that at least one federal circuit viewed the scope of Rule 606(b) as unaffected by a failure of the voir dire protection.
Indeed, in some cases involving deceptive answers during voir dire, courts have held that evidence of misconduct was inadmissible despite a Tanner safeguard’s clear failure. In United States v. Benally, the judge asked two questions during voir dire about whether the jurors would be prejudiced against the defendant because he was Native American. Though no juror answer indicated bias, the day after the jury announced its verdict one juror claimed that the deliberation had been improperly influenced by two jurors’ racist claims about Native Americans. The defendant argued that Rule 606(b) did not prohibit this evidence, because it was being offered to show that a juror had been dishonest during voir dire, not to inquire into the validity of the verdict.
Relying on the policy rationales of protecting the integrity of the jury system and ensuring a finality to litigation as well as the legislative history that accompanied Rule 606(b), the court rejected this argument. “Although the immediate purpose of introducing the testimony may have been to show that the two jurors failed to answer honestly during voir dire, the sole point of this showing” was to challenge the validity of the verdict. Allowing juror testimony “through the backdoor of a voir dire challenge” would risk swallowing the rule, which the court declined to do given the importance of protecting jury deliberations from judicial review. Crucially, the court noted that each Tanner protection “might not be equally efficacious in every instance of juror misconduct.” However, since voir dire could protect defendants, and since some of the other protections were unaffected, the court reasoned that the defendant’s interest in an impartial jury was nevertheless unthreatened.
Still other courts, however, took the opposite tack, arguing that at least in some cases the Tanner protections did not provide adequate safeguards. In United States v. Villar, hours after the defendant was convicted, defense counsel received an email from one the jurors claiming that another juror engaged in racial profiling during deliberations. In contrast to both Williams and Benally, neither party requested the court to ask jurors voir dire questions about racial or ethnic bias, and so no such questions were asked.
While the court ultimately ruled that Rule 606(b) was inapplicable in this case because the alleged misconduct violated the defendant’s Sixth Amendment right to a fair trial, its analysis shows the skepticism some courts have expressed about the efficacy of the Tanner protections. Stressing that “the policies embodied in Rule 606(b) and underscored in Tanner are extremely important,” the court nevertheless believed that the Tanner protections were inadequate in guarding against particular instances of misconduct. The court noted that observation of the jury during proceedings was unlikely to identify jurors that might engage in misconduct, and also observed that relying on non-jurors to report misconduct was more likely to result in the reporting of alcohol or drug use than prejudice during deliberations. The court also remarked on the multiple ways voir dire failed at protecting defendants, from the recognition that jurors may be reluctant to admit racial bias to the acknowledgement that tactical concerns would often lead to questions about bias or prejudice going unasked.
Moreover, in United States v. Henley, the Ninth Circuit determined that when the voir dire protection proved inadequate because of juror dishonesty, Rule 606(b)’s prohibitions should be relaxed. There, a juror indicated on his voir dire questionnaire that he had no racial biases but later made racist statements to other jurors while they carpooled to and from the courthouse. The court determined that an affidavit from another juror testifying to these statements was “indisputably admissible” to determine whether the juror had been honest during voir dire. It then added that the Rule’s primary purpose of insulating the jurors’ private deliberations from post-verdict scrutiny would not be implicated by permitting juror testimony about what was said while the jurors carpooled to the trial.
It was not until 2014, in Warger v. Shauers, that the Supreme Court would rule on whether evidence from deliberations indicating juror dishonesty during voir dire would be admissible under Rule 606(b). In this negligence case about a car accident, counsel for both parties conducted lengthy voir dire of the prospective jurors. During these proceedings, Warger’s counsel asked “whether any jurors would be unable to award damages for pain and suffering or for future medical expenses,” as well as if any juror thought she could not be fair or impartial. A prospective juror who later became the foreperson answered no to each of these questions. After the jury returned a verdict for the defendant, a juror contacted Warger’s counsel to express concern over the foreperson’s conduct during deliberations. She then signed an affidavit challenging the foreperson’s ability to consider the case fairly and impartially. Warger moved for a new trial, contending that the foreperson had lied during voir dire about her impartiality. He also claimed the affidavit was admissible under Rule 606(b) because it did not inquire into the validity of the verdict; rather, it inquired into the validity of the voir dire proceedings.
Writing for a unanimous Court, Justice Sotomayor began by acknowledging the tortuous history and varied interpretations of the no-impeachment rule. She then argued that Warger’s interpretation would limit the scope of Rule 606(b) to prohibit only evidence of misconduct that occurred during deliberations. The Rule’s proper scope, she contended, was more expansive than this: it prohibited evidence about misconduct in any proceeding inquiring into the validity of the verdict, regardless of when the alleged misconduct the evidence referred to occurred. If Warger’s motion for new trial were granted, proceedings inquiring into the validity of the verdict would inevitably follow. Even though the alleged misconduct Warger complained of took place during voir dire, he would still be asking the court to consider evidence about deliberations in an effort to challenge the validity of the verdict. Such admission would run directly contrary to the Rule’s directives and, therefore, the motion for new trial must be denied.
Determining the strength of the Tanner “protections,” as well as how Rule 606(b) should be applied when such protections were clearly ineffective, was not the only aspect of Tanner that confounded lower courts. Many of them also found the internal/external distinction difficult to interpret and apply. Lower courts’ interactions with the issue of whether or not racial bias fell within the “extraneous influence” exception articulated in Rule 606(b)(2)(A) illustrates this difficulty. For example, the Ninth Circuit in Henley presented the “powerful case . . . that Rule 606(b) is wholly inapplicable to racial bias” based on Supreme Court precedent which stated that a juror “may testify concerning any mental bias in matters unrelated to the specific issues that the juror was called upon to decide.” The court also suggested that it would support an interpretation of Rule 606(b) that considered racial bias “extraneous prejudicial information” while adding that, even without such a characterization, it would be consistent with the Rule’s text to hold that racial bias does not generally fall within the scope of the Rule.
However, other courts have determined that racial bias constitutes impermissible evidence of an internal process. The Sixth Circuit, for instance, declared flatly and with little analysis that racial slurs were internal influences and that testimony on such subjects should therefore be barred by Rule 606(b). And the D.C. Court of Appeals, “in accordance with the overwhelming majority of decisions from other jurisdictions,” held that evidence alleging racial bias could not be admitted because such bias did not constitute extraneous influence. The expression of racial bias, according to the court, did not clearly fall within any definable category of “extraneous influence,” nor was it evidence that the jurors could obtain outside of the trial process. The application of Tanner’s internal/external divide, while perhaps helpful in determining some of the boundaries of Rule 606(b)’s application, has not offered guidance to lower courts on more difficult questions. This has often forced them to determine questions of admissibility based not on the text of the Rule, but rather on the protections afforded to criminal defendants by the Sixth Amendment.
Thus, when the Supreme Court met to hear oral arguments in Peña-Rodriguez v. Colorado, there was no consensus on either the admissibility of racial bias or how exactly Tanner’s internal/external distinction operated in the face of a constitutional challenge. Asked to determine whether a state rule modeled on Rule 606(b) applied to juror testimony that the deliberations had been tainted with racial bias, the Court was forced to address not only the contours of Rule 606(b), but also its interaction with the Sixth Amendment. In holding that Rule 606(b) could result in evidentiary rulings that would violate the Sixth Amendment, Peña-Rodriguez illustrated the deficiencies of Rule 606(b) in determining admissibility of juror testimony on its own terms.
Peña-Rodriguez was convicted in state district court of unlawful sexual contact and harassment. After the jury had been discharged, two jurors contacted his attorney and told him that another juror had expressed anti-Hispanic bias during deliberations. The attorney reported this to the court and obtained sworn affidavits from the two jurors, which described the biased statements. After reviewing the affidavits and considering Colorado Rule of Evidence 606(b)—which is generally equivalent to its federal counterpart—the trial court acknowledged the bias but denied the motion for a new trial because the evidence was inadmissible since it occurred during deliberations.
While Justice Thomas contributed a brief dissent, the main opposition was provided by the author of one of the most influential circuit opinions in determining the scope of Rule 606(b): Justice Alito. After emphasizing the importance of keeping deliberations confidential, Alito argued that “Tanner and Warger rested on two basic propositions.” The first, which the majority did not dispute, was that the no-impeachment rule advances crucial interests such as verdict finality and deliberative secrecy; the second, reaffirming Tanner, was that the right to an impartial jury is adequately protected by procedures other than the use of jury testimony regarding deliberations. Through individual questioning of prospective jurors and the use of “subtle and nuanced” questions, a carefully conducted voir dire was capable of adequately protecting defendants’ interests in a fair trial even where jurors may hold racial biases.
Alito ended his dissent by arguing that while it was “undoubtedly true” that racial bias implicated unique concerns, he could not see what these concerns “ha[d] to do with the scope of an individual criminal defendant’s Sixth Amendment right[s] . . . .” The Justice argued that the majority’s decision was incapable of producing principled distinctions between different types of juror partiality, which threatened to completely subsume the no-impeachment rule. If the Sixth Amendment required the admission of evidence showing one type of juror partiality, Justice Alito reasoned, it equally required evidence showing any type of juror partiality. Since such a concept ran against Rule 606(b)’s general ban on evidence to impeach a verdict, Justice Alito argued that the Court should not allow this type of evidence to be admitted.
Justice Alito was not the first person to doubt that there is a principled distinction between racial bias and any other form of internal bias. One commentator had previously noted that no language existed in the Sixth Amendment that would justify treating racial comments differently from other comments indicating partiality or unfairness, while another deemed it “unlikely” that courts would use the type of reasoning deployed in Peña-Rodriguez for fear that it “would effectively undercut the entire purpose of Rule 606(b).” If for no other reason, then, the holding in Peña-Rodriguez that the Sixth Amendment might sometimes render Rule 606(b) unconstitutional suggests a rethinking of the Rule itself.
To be sure, proposals for amending Rule 606(b) have been made in the past. People concerned with the impact of racial bias have argued that the Rule should include instructions indicating that racial bias should fall within one or both of the Rule’s exceptions. Others think the Rule should add a fourth exception allowing for allegations of racism that occurred during deliberations. Still others have advocated for adding an exception that would allow the introduction of evidence that violence or a threat of violence was made upon one juror by another. Because these suggestions predate both Warger and Peña-Rodriguez, however, they do not consider these decisions or the difficulties in interpreting and applying Rule 606(b) that led to them. Such suggestions, therefore, either do not go far enough or are no longer applicable given the Supreme Court’s understanding of the scope of the Rule. At least one more recommendation, then, is in order.
The first and most drastic change that should be made is to create two separate no-impeachment rules: one governing the admissibility of evidence in criminal trials and one governing the admissibility of evidence in civil trials. A number of factors support this separation. First, older Supreme Court precedent indicates that the Court understood that a strict no-impeachment rule was only applicable in civil cases. Second, it is the simplest and most effective way to account for the Supreme Court’s recognition in Peña-Rodriguez of the inherent conflict between Rule 606(b) and the Sixth Amendment while preserving the existing Rule in cases where it is not in conflict. Third, it accords with the practice of other Federal Rules of Evidence that make constitutionally based distinctions for criminal defendants. Rule 803(8)—the public-records exception to the hearsay rule—is illustrative of this distinction: the exception does not allow for factual findings of a legally authorized investigation to be introduced against criminal defendants because of concerns rooted in the Confrontation Clause of the Sixth Amendment. Finally, the separation accords with other postverdict relief available solely for criminal defendants, such as habeas corpus petitions, claims of ineffective assistance of counsel, and Batson challenges.
Furthermore, while Rule 606(b)’s current construction can be retained for civil trials, the rule governing criminal trials should be altered. In accordance with the Iowa Rule, it should only disallow evidence of jurors’ mental and decision-making processes. While such a change would certainly lead to more evidence being admitted, it would also ensure courts balance the interests of deliberative secrecy with avoiding juror misconduct. Moreover, allowing the court to consider more instances of juror misconduct—particularly statements indicating biases against minorities—would have benefits beyond individual defendants. In fact, rather than threatening the jury system’s legitimacy, a more permissive rule might actually strengthen the jury system’s legitimacy, particularly among communities of color.
The fears of Justice Alito and others that the no-impeachment rule will perish if it adopts such a policy of greater admissibility are arguably suspect. After all, if the sanctity of jury deliberations and the finality of verdicts were the only considerations, the Advisory Committee should have simply adopted Mansfield’s Rule. But the drafters of the Rule understood that such a blanket rule of exclusion would create problems of its own, and important policy objectives could be achieved while still allowing for some needed exceptions. Few, if any, courts suggest that the “extraneous information” or “outside influence” exceptions threaten deliberative secrecy or the integrity of the jury system. It seems overreactive, then, to suggest that any additional exceptions are liable to bring the whole system crashing down.
Amendments to Rule 606(b) would also not threaten the finality of verdicts, which is “[p]erhaps the most important policy supporting Rule 606(b).” First, by expanding the Rule in only criminal cases, this change would impact those cases where only one party, the criminal defendant, could take advantage of greater admissibility, because the Fifth Amendment would bar prosecutors from retrying the case. Second, the fears that a more permissive no-impeachment rule would incentivize parties to challenge the finality of verdicts by seeking out impeachment testimony are unsupported by the empirical evidence. In fact, in almost every case that has addressed the issue so far, petitioners have not actively sought out juror testimony to impeach the verdict; rather, a member of the jury independently reached out and alerted the petitioners of misconduct. Furthermore, the Rule could simply provide that defendants may only challenge the validity of the verdict using evidence obtained through a juror’s independent disclosure or evidence obtained from juror interviews conducted immediately after rendition of the verdict. This would alleviate concerns about the finality of verdicts and would also protect against—or at least not encourage—harassment of the jury.
It is undeniable that Rule 606(b) protects important interests of the justice system. Maintaining the secrecy of deliberations through a robust ban on evidence from deliberations serves several crucial functions, such as preserving the jury’s independence and encouraging more well-considered verdicts. But “[t]he right to a trial by an impartial jury lies at the very heart of due process”—indeed, “stands guardian over all other rights.” Acts of juror misconduct fundamentally threaten this right. The protection of the right to a fair trial by an impartial jury requires a reckoning with a rule of evidence that often serves to confound and frustrate this right. Seventy years before the Supreme Court decided that Rule 606(b) conflicted with the Sixth Amendment, Judge Learned Hand warned of allowing evidence of juror misconduct to impeach a verdict. Forced to ensure that verdicts were rendered only when every juror was entirely without bias, Hand prophesied that judges “would become Penelopes, forever engaged in unravelling the webs they wove.” Faced with the challenges created by our current understanding of the no-impeachment rule, perhaps the time has come for all of us to become Penelopes in the service of fairness and justice.

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James H. GORMAN, Jr. et al., Plaintiffs-Appellants, Edgardo Carballo, Craig M. Cuvelier, Frederick J. Galbraith, Robert Veteramo, Richard P. Jones, James M. Cillo, Plaintiffs, v. THE CONSOLIDATED EDISON CORPORATION, Defendant-Appellee.
James H. Gorman, Jr. et al., Plaintiffs-Appellants, v. Entergy Nuclear Operations, Inc., Defendant-Appellee.
Before: JACOBS, Chief Judge, CALABRESI, Circuit Judge, and BERMAN, District Judge.* Joseph P. Carey, Joseph P. Carey, P.C., Fishkill, N.Y. (Annette G. Hasapidis, Law Offices of Annette G. Hasapidis, South Salem, NY, on the brief), for Plaintiffs-Appellants. David J. Reilly (Mary K. Schuette, Eva L. Martinez, Barbara Jane Carey, on the brief), Consolidated Edison Company of New York, Inc., Law Department, New York, NY, for Defendant-Appellee The Consolidated Edison Corporation. Jonathan M. Kozak (Joseph M. Martin, on the brief), Jackson Lewis LLP, White Plains, NY, for Defendant-Appellee Entergy Nuclear Operations, Inc.
In these consolidated appeals under the Fair Labor Standards Act (“FLSA”), employees of a nuclear power station sue their present and former employers (variously) challenging computation of overtime and seeking payment of wages for the time it takes for security-related procedures at ingress to the plant, for suiting up, for some intervening steps, and for the same in reverse. FLSA, 29 U.S.C. § 201 et seq., as amended by the Portal-to-Portal Act, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)). The plaintiffs work at the Indian Point II nuclear power plant (“Indian Point” or “the plant”), which was owned and operated by defendant Consolidated Edison Company of New York, Inc. (“Con Ed”), and was sold in September 2001 to defendant Entergy Nuclear Operations, Inc. (“Entergy”).
In the action against Con Ed, plaintiffs claim that the method of calculating the hourly overtime rate inadequately accounts for the premium paid to those who work the nightshifts. The United States District Court for the Southern District of New York (McMahon, J.) dismissed, and plaintiffs moved for leave to file an amended complaint. The proposed amended complaint asserted the different and distinct FLSA claim to be paid wages for time spent in security procedures and in “donning and doffing” required protective gear (to use the term of art). Judge McMahon denied the motion for leave to amend as futile.
The suit against Entergy asserted claims which were substantially similar to those in the proposed amended complaint against Con Ed.1 The district court (Robinson, J.) granted Entergy's motion to dismiss, and denied plaintiffs' motion for leave to amend as futile.
On appeal, each case presents the question whether ingress and egress and donning and doffing are compensable under the FLSA. Also at issue is the propriety of Con Ed's method of calculating plaintiffs' hourly overtime rate. There are also state law claims; but it is stipulated that those claims are controlled by our adjudication of the FLSA claims.
The FLSA, 29 U.S.C. § 201 et seq., was enacted to ensure that employees receive a “fair day's pay for a fair day's work,” Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) (quoting 81 Cong. Rec. 4983 (1937) (message of President Franklin D. Roosevelt)), superseded by statute, Portal-to-Portal Act, 61 Stat. 86-87, as recognized in Trans World Airlines v. Thurston, 469 U.S. 111, 128 n. 22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). On the pay end, the FLSA “guarantee[s] compensation for all work or employment engaged in by employees covered by the Act.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602-03, 64 S.Ct. 698, 88 L.Ed. 949 (1944). But not all work-related activities constitute “work or employment” that must be compensated. Kavanagh v. Grand Union Co., Inc., 192 F.3d 269, 271-72 (2d Cir.1999).
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). Each of the two subsections bears upon plaintiffs' claims.
Under subsection (1), no pay is required for travel to and from the place where the employee performs his “principal activities”; the FLSA regulations define “principal activities” as those “which the employee is employed to perform.” 29 C.F.R. § 790.8(a) (internal quotation marks omitted). Subsection (2) of the Portal-to-Portal Act undid the Anderson holding that required compensation for putting on aprons and overalls, and thus “was intended to relieve employers from liability for preliminaries, most of them relatively effortless, that were thought to fall outside the conventional expectations and customs of compensation.” N.Y. City Transit Auth., 45 F.3d at 649. A substantial body of case law discusses subsection (2)'s distinction between (on the one hand) preliminary and postliminary activities and (on the other) the principal activities of employment; but the distinction remains elusive in application.
activities performed either before or after the regular work shift ․ are compensable under the portal-to-portal provisions of the Fair Labor Standards Act 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 [subsection 1 of the Portal-to-Portal Act].
Id. at 256, 76 S.Ct. 330 (emphasis added). Thus, after Steiner, activities that are “integral and indispensable” to principal activities are compensable under the FLSA (as well as the principal activities themselves).
On the same day Steiner issued, the Supreme Court decided a slaughterhouse case, holding that knife-sharpening is “an integral part of and indispensable to the various butchering activities for which [the workers] were principally employed.” Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956). The Mitchell Court shed light on the meaning of “integral” (as used in Steiner ): sharpening knives is both indispensable to the task of butchering animals, and intrinsically “connected with” it. Id. at 262, 76 S.Ct. 337. The Court cited the testimony of a supervisor to the effect that “a dull knife would slow down production ․, affect the appearance of the meat as well as the quality of the hides, cause waste and make for accidents; ‘that a knife to be of any practical value in a knife job has to be sharp.’ ” Id. (ellipses omitted).
In a more recent case, IBP v. Alvarez, the parties left uncontested the finding that the donning and doffing of “unique protective gear” constitute “principal activities”; at issue in the Supreme Court was: whether employees must be paid for time waiting to enter the locker room, time in transit from the locker room to the job-site, and time in transit back to the locker room. 546 U.S. 21, 29-30, 39-40, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005).
The Court first held that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under ․ the Portal-to-Portal Act.” Id. at 37, 126 S.Ct. 514. Since it was uncontested that the specialized protective gear was “integral and indispensable” under Steiner, the donning and doffing was itself a “principal activity.” And because employees are paid for a continuous workday-which begins with the first principal activity and ends with the last-the Portal-to-Portal Act has no application once the workday has begun. Id. at 28-29, 126 S.Ct. 514 (citing 29 C.F.R. § 790.6(a)). Therefore, “during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is [compensable].” Id. at 37, 126 S.Ct. 514.
Nevertheless, the Court held that awaiting the first principal activity of the workday is not itself a principal activity, id. at 40, 126 S.Ct. 514; it cited 29 C.F.R. § 790.7(g), which “characterizes the time that employees must spend waiting to check in ․ as generally a ‘preliminary’ activity covered by the Portal-to-Portal Act.” Id. at 41-42, 126 S.Ct. 514. As the Court emphasized, “the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are ‘integral and indispensable’ to a ‘principal activity’ under Steiner.” Id. at 40-41, 126 S.Ct. 514.
Before the Indian Point employees can perform the tasks for which they were hired, they spend between ten and thirty minutes a day passing through multiple layers of security and suiting up. Am. Compl. ¶ 19. The question is whether these activities are “ ‘integral and indispensable’ to a ‘principal activity’ under Steiner,” IBP, 546 U.S. at 39-40, 126 S.Ct. 514, and therefore (under IBP ) principal activities in themselves. If so, they are compensable under the FLSA.
We review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6). E & L Consulting, Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 28 (2d Cir.2006). For the purpose of such a review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002). Generally, we review a district court's denial of a motion to amend under the abuse of discretion standard. Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir.2000). “However, if the denial of leave to amend is based upon a legal interpretation ․ we review [it] de novo.” Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir.2001) (per curiam ). Here, each district judge denied the motions for leave to amend as futile based on their interpretation of the FLSA; so we review those denials de novo.
Plaintiffs' contention that these activities are “integral and indispensable to the performance of [their] principal activities,” 3 Am. Compl. ¶ 15, relies chiefly on the idea that they are “indispensable” or required-without accounting for Steiner's requirement that they be “integral” as well. Steiner, 350 U.S. at 256, 76 S.Ct. 330.
“Indispensable” is not synonymous with “integral.” “Indispensable” means “necessary.” See Webster's Third New Int'l Dictionary (Unabridged) 1152, 1510-11 (1986). “Integral” means, inter alia, “essential to completeness”; “organically joined or linked”; “composed of constituent parts making a whole.” Id. at 1173. At the same time, “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945). The caselaw gives better guidance by apt examples: Sharpening the knife is integral to carving a carcass, Mitchell, 350 U.S. at 263, 76 S.Ct. 337; powering up and testing an x-ray machine is integral to taking x-rays, Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 717-18 (2d Cir.2001); and feeding, training and walking the dog is integral to the work of a K-9 officer, Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir.1995), limited in part by IBP, 546 U.S. at 21, 126 S.Ct. 514. See also IBP, 546 U.S. at 40-41, 126 S.Ct. 514 (observing that activities which are “necessary” (or indispensable) to a principal activity are not thereby “integral and indispensable”); 29 C.F.R. § 790.7(d) (noting, for example, that “the carrying by a logger of a portable power saw or other heavy equipment (as distinguished from ordinary hand tools) on his trip into the woods to the cutting area ․ is not segregable from the simultaneous performance of his assigned work” and is thus integral to his principal activities) (emphasis added).
Steiner is in one sense the most apt analog, dealing as it does with donning and doffing gear that protects against workplace dangers that transcend ordinary risks. At issue in Steiner was exposure to corrosive and toxic substances that permeated a battery plant; at issue here is the security of a nuclear power plant. The analogy is, however, unsustainable. The Steiner opinion invites a narrow interpretation: “[I]t would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees.” 350 U.S. at 256, 76 S.Ct. 330. Without the taking of the measures required, the environment of the battery plant could not sustain life-given the toxic substances in liquid, solid, powder and vapor form (and in the dust of the air) that “permeate[d] the entire [battery] plant and everything and everyone in it.” Id. at 249, 250, 76 S.Ct. 330. Steiner therefore supports the view that when work is done in a lethal atmosphere, the measures that allow entry and immersion into the destructive element may be integral to all work done there, just as a diver's donning of wetsuit, oxygen tank and mouthpiece may be integral to the work even though it is not the (underwater) task that the employer wishes done.
Plaintiffs argue that the Portal-to-Portal Act was enacted when the time-consuming security measures at issue may not have been envisioned, and there is some force to the observation that security measures at sensitive facilities (and elsewhere) are becoming increasingly invasive, layered and time-consuming. But the text of the statute does not depend on the purpose of any preliminaries, or how much time such preliminaries may consume. Travel time was held to be “normal” (and therefore outside the FLSA) in Kavanagh v. Grand Union Co., Inc., even though the plaintiff (who performed mechanical services in defendant's supermarkets) commuted five to nine hours a day depending on the supermarkets to which he was dispatched. 192 F.3d 269, 272-73 (2d Cir.1999). Normal travel time “does not represent an objective standard of how far most workers commute or how far they may reasonably be expected to commute. Instead, it represents a subjective standard, defined by what is usual within the confines of a particular employment relationship.” Id. at 272. By the same token, security measures that are rigorous and that lengthen the trip to the job-site do not thereby become principal activities of the employment. At Indian Point, this is easily demonstrated because the security measures at entry are required (to one degree or another) for everyone entering the plant-regardless of what an employee does (servicing fuel rods or making canteen sandwiches)-and including visitors. See Gorman v. Entergy, No. 04 Civ. 8484 (S.D.N.Y. filed Apr. 17, 2006) (citing plaintiffs' memorandum in opposition to defendant's motion to dismiss).
Similarly, a helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs' principal activities without being integral.6 The donning and doffing of such generic protective gear is not different in kind from “changing clothes and showering under normal conditions,” which, under Steiner, are not covered by the FLSA. 350 U.S. at 249, 76 S.Ct. 330. Among the activities classified in the regulations as preliminary and postliminary are “checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks.” 29 C.F.R. § 790.7(g) (emphasis added). The donning and doffing of generic protective gear is not rendered integral by being required by the employer or by government regulation. See Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir.1994) (holding that donning and doffing safety glasses, a pair of earplugs, a hard hat and safety shoes, “although essential to the job, and required by the employer,” are pre- and postliminary activities); Anderson v. Pilgrim's Pride Corp., 147 F.Supp.2d 556, 563 (E.D.Tex.2001) (same), aff'd, 44 Fed.Appx. 652 (5th Cir.2002) (not precedential). But see Alvarez v. IBP, Inc., 339 F.3d 894, 903 (9th Cir.2003) (observing that the “donning, doffing, and cleaning of non-unique gear (e.g., hardhats) [is] ‘integral and indispensable’ as that term is defined in Steiner ”), aff'd on other grounds, IBP, 546 U.S. at 21, 126 S.Ct. 514. The donning and doffing of a helmet, safety glasses and boots are “relatively effortless,” non-compensable, preliminary tasks. N.Y. City Transit Auth., 45 F.3d at 649. And even if the donning and doffing of a helmet, safety glasses and steel-toed boots were “integral and indispensable” to plaintiffs' principal activities, we would be required to consider whether the time so spent was de minimis.7 See id. at 652-53.
Because plaintiffs can prove no set of facts entitling them to compensation for time spent entering and exiting the facility, and donning and doffing a helmet, safety glasses and boots, we affirm the dismissal of plaintiffs' claims against Entergy and the denial by both district judges of leave to amend the complaints.
Plaintiffs challenge the grant of summary judgment dismissing their overtime-compensation claims against Con Ed. According to plaintiffs, the method used to calculate the hourly rate for overtime work inadequately accounted for the premium rate paid for nightshifts at the plant.
We review de novo the district court's grant of summary judgment, construing the facts in the light most favorable to the non-moving party. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
The FLSA generally requires that an employee who works more than forty hours in a given week be paid for the excess time at a rate “not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). The regular rate is “all remuneration for employment paid to ․ the employee,” minus certain exceptions inapplicable here. Id. at § 207(e). As the Supreme Court has explained, it is “the hourly rate actually paid the employee for the normal, non-overtime workweek,” and “must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424-25, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945).
The collective bargaining agreement (“CBA”) between plaintiffs and Con Ed created a three-tiered compensation structure: (i) “straight” or “basic” time for day shifts, (ii) an 8% premium for the evening shift (between 6:00 p.m. and midnight), and (iii) a 10% premium for the nightshift (between midnight and 7:00 a.m.). These latter two premiums are collectively referred to as the nightshift differential.
Where an employee in a single workweek works at two or more different types of work for which different nonovertime rates of pay ․ have been established, his regular rate for that week is the weighted average of such rates. That is, his total earnings (except statutory exclusions) are computed to include his compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs.
Finally, plaintiffs' argument under the CBA succumbs to the rule that “the regular rate of pay cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee[;] it must be drawn from what happens under the employment contract.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 464, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948) (emphasis added); see also Walling, 325 U.S. at 424, 65 S.Ct. 1242 (observing that the regular rate “is not an arbitrary label chosen by the parties; it is an actual fact”); 29 C.F.R. § 778.109 (same). Because Con Ed's weighted average method adequately accounts for the compensation actually received by employees in calculating the regular rate, we affirm the district court's grant of summary judgment to Con Ed.
For the foregoing reasons, the judgments of the district courts are affirmed.
1. Plaintiffs' proposed amended complaint identified no additional activities. As the district court observed, the proposed changes simply “add details about the procedures [plaintiffs are] required to perform [and] do not alter the non-compensable nature of the activities [they] are required to perform before and after work.” Gorman v. Entergy, No. 04 Civ. 8484 (S.D.N.Y. filed Apr. 17, 2006).
2. The egress radiation-test is apparently more sensitive and takes more time.
3. The pleadings (and the proposed amended pleadings) omit plaintiffs' particular responsibilities; but plaintiffs' counsel said at argument that plaintiffs work in chemical applications, radiology, maintenance and the control room.
4. In the nuclear containment area-which more closely resembles the battery plant-Indian Point employees wore specialized gear and dosimeters, and were compensated for donning and doffing.
5. Rules may yield to particular instances. For example, passing through preliminary security procedures may be integral to the principal activity of an employee responsible for monitoring, testing and reporting on the plant's infrastructure security.
6. At argument, plaintiffs' counsel conceded that the protective gear listed in the complaint (helmets, safety glasses, and steel-toed shoes) were the only protective gear that plaintiffs were required to wear; if given the opportunity to re-plead, counsel would not supplement.
7. As this Court explained in New York City Transit Authority:[T]he de minimis doctrine was first articulated by the Supreme Court in Anderson ․: “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded․ It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”45 F.3d at 652 (quoting Anderson, 328 U.S. at 692, 66 S.Ct. 1187). Three factors bear upon the determination of whether the time spent in a particular activity is de minimis: (1) the administrative difficulty of recording the time; (2) the size of the claim in the aggregate; and (3) whether the tasks occur regularly. Id. (citing Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984)).The tasks here are repeated daily and there would be little administrative difficulty in recording them. As to the size of the potential claim, plaintiffs' counsel was asked at argument: “Is there anything special about these shoes or glasses, or safety caps that takes longer than what we could, in or own experience, know about putting [them] on?” Counsel responded: “Not to my knowledge.” And counsel acknowledged that these shoes are not somehow more complicated than an ordinary shoe.The pleadings would not contradict a conclusion that the time so spent would be de minimis; but we decide this case on the ground that the activities at issue are preliminary and postliminary because that conclusion is more easily arrived at on the pleadings. Moreover, it is perhaps unclear (after IBP's continuous workday rule) whether the de minimis test measures only the first integral and indispensable activity of the day, or includes as well all intervening steps that precede the next principal activity of the continuous workday.
8. The method Con Ed actually uses has more steps, but yields the same result as a more simple weighting calculation. Con Ed's method (1) calculates how much additional money an employee earned as a result of the nighttime differentials; (2) divides that number by the total number of hours worked in the week; (3) multiplies that number by the number of overtime hours worked in the week; (4) it then divides that number in half (to account for the time-and-a-half); and (5) compensates the employee by that additional increment.
9. The clear and unambiguous language of Paragraph 13(b) simply provides that temporary reassignments that would otherwise pay less will not affect an employee's actual compensation, unless the reassignment was a result of a demotion. See Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir.2001) (“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms and those terms may be the basis for summary judgment.”) (internal citations omitted). Plaintiffs' argument that the contractual provision establishes a single hourly rate is nonsensical; the CBA expressly provides for at least three rates (straight time, the 8% evening premium, and the 10% night premium). See Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278, 283 (2d Cir.2005) (observing that “canons of construction” forbid contractual interpretations that “lead to absurd results”).
10. In Brock, as here, pay for each of three shifts was paid at a different hourly rate. 833 F.2d at 13-14. For overtime, the employer generally paid employees 150% of the day-shift rate (that being the lowest hourly rate paid for non-overtime work). Id. In Brock, we rejected that pay in favor of the weighted average method. Id. at 14.
11. As plaintiffs observe, the example used in this regulation assumes that the two rates of pay are a result of different jobs, not nighttime differentials. But this observation misapprehends the purpose of the regulation, which is simply to provide an example of a means of calculating the regular rate. See 29 C.F.R. § 778.109 (“The following sections give some examples of the proper method of determining the regular rate of pay in particular instances ․” (emphasis added)).


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Research on non-cognitive factors has shown that persistence in the face of challenges plays an important role in learning. However, recent work on wheel-spinning, a type of unproductive persistence where students spend too much time struggling without achieving mastery of skills, show that not all persistence is uniformly beneficial for learning. For this reason, it becomes increasingly pertinent to identify the key differences between unproductive and productive persistence toward informing interventions in computer-based learning environments. In this study, we use a classification model to distinguish between productive persistence and wheel-spinning in ASSISTments, an online math learning platform. Our results indicate that there are two types of students who wheel-spin: first, students who do not request any hints in at least one problem but request more than one bottom-out hint across any 8 problems in the problem set; second, students who never request two or more bottom out hints across any 8 problems, do not request any hints in at least one problem, but who engage in relatively short delays between solving problems of the same skill. These findings suggest that encouraging students to both engage in spaced practice and use bottom-out hints sparingly is likely helpful for reducing their wheel-spinning and improving learning. These findings also provide insight on when students are struggling and how to make students' persistence more productive.
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