The Supreme Court passed down the rare unanimous decision on Tuesday when they decided that time spent in security lines on your way out of work was not compensable. In no uncertain terms, SCOTUS has set a standard for cases involving security screens. So where does that leave us?
The case
The issue was raised by two employees of Integrity Staffing Solutions, who worked in the Amazon.com warehouse filling orders. They were hourly workers who sued after that the time spent in required, post-work security checks–up to 25 minutes–didn’t entitle them to overtime pay. Their lawyers argued that since this was a mandatory part of their job, put in place by their employer to prevent theft, they were entitled to compensation.
The U.S. District Court in Nevada threw the case out, claiming that the activities were postliminary, but the 9th Circuit reversed that decision. Though they may be normally considered postliminary, they were not if they were required by the employer. The Supreme Court then granted a certiorari.
SCOTUS’ take
The case at hand, of course, did not go in the workers’ direction. And decidedly so; with a 9-0 vote in favor of not requiring overtime pay. The case was similar to a previous decision passed down by SCOTUS this year where the court similarly unanimously decided that employers did not need to compensate workers for the time they spent donning and doffing their protective gear. As noted in a blog post for Wage & Hour Insights, this case hinged on whether or not the security checks were, indeed, mandatory and integral to the job:
As the Justices had hinted at during oral argument, the decision explained that Integrity Staffing did not hire employees to go through security screenings but to retrieve products from the Amazon warehouse shelves and package them for shipment. These security screenings were not integral and indispensable to the “performance of productive work,” as the FLSA regulations require. The Court observed that, unlike requiring pre-shift donning and doffing of protective gear, Integrity Staffing could have completely eliminated the security screenings altogether without impairing the safety or effectiveness of the employees’ principal activities.
Under the FLSA, as amended by the Portal-to-Portal Act, employers generally need not compensate employees for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” The FLSA distinguishes between activities that are essentially part of the ingress and egress process and those that constitute the actual “work of consequence performed for an employer.”
The Court cited an early Department of Labor opinion in interpreting the Portal-to-Portal Act in 1951, which was what the 9th Circuit cited when they ruled in favor of the workers. In the opinion, the Department drew no distinction between pre-shift searches for “items which have a direct bearing on the safety of the employees,” and post-shift searches, which were done “for the purpose of preventing theft.” It also found that neither search was compensable under the Portal-to-Portal Act.
As Michael Kun remarks in a post for Wage & Hour Defense Blog, SCOTUS found that it was in the interpretation of this that the 9th Circuit went wrong:
Where the Ninth Circuit erred, according to the Court, was in focusing on whether an employer “required” a particular activity. As the Court explained, “If the test could be satisfied merely by the fact that an employer required the activity, it would sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address.”
Not unimportantly, the Court also rejected the argument that the time spent in security screenings became compensable because Integrity Staffing could have reduced the time considerably such that it was a de minimis amount: “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”
What now?
This decision will likely have a far-reaching practical and legal impact. Security checks are becoming more common these days, and as Greg Mersol notes on the Employment Class Action blog, this firmly establishes precedent for what employees can expect from employers in terms of mitigating security check time:
[The court] rejected the argument that the employer could have reduced the amount of time spent waiting by running its operations differently, finding that that was a topic better left to the bargaining table.
The Busk decision is significant because it will likely stem a flood of litigation on security check issues. Implicit in the Court’s opinion is that the time spent by employees in security checks entering a facility (e.g., airports, courts, government facilities, and many private offices and plants with security concerns) are not compensable. The Busk case will also serve to refine what activities will be deemed preliminary and postliminary in the future.
Moving forward, Dan Schwartz leaves us with a good analogy on why SCOTUS swung so decisively this way:
It’s not very different that the employees who are required take shuttle buses to parking lots after their shift. That is not compensable either.
Nevertheless, if you are an employer that requires your employees to come into work early or stay after and go through some type of screening or process, this is definitely a decision to review to make sure your practice falls within the applicable state and federal laws.