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  December 17, 2014

warehouse.jpgThe U. S. Supreme Court just issued a unanimous decision in Integrity Staffing Solutions Inc v Busk, et al, (Dec. 9, 2014), which was widely called “the security check case”.  Warehouse workers had sued Integrity Staffing for uncompensated time they were required to spend in security screenings lasting up to 25 minutes at the end of their shifts while assigned to work in Amazon warehouses. The Supreme Court ruled employees do not have to be paid for time spent waiting for and actually undergoing security checks. 

Surprising Unanimous Decision

This result was especially surprising in that all nine justices agreed that time spent waiting for and undergoing security checks at the end of the day should not be considered “work”, and therefore is not compensable.  This ruling seems contrary to prior rulings that “donning and doffing” time, putting on and taking off equipment or clothes needed for a job, is considered part of the job and is compensable.   

Distinguishing This Activity From “Donning and Doffing” Cases

The Supreme Court reasoned there is a distinction between these activities.  That is, if employees must don or doff certain clothing or gear to perform their essential job functions adequately or safely, then the time spent doing that is compensable because it is integral to the principal job functions.  

Test Outlined By Court

supreme court.jpgThe Court observed that, unlike requiring pre-shift donning and doffing of protective gear, Integrity Staffing could have eliminated the security screenings altogether without impairing the safety or effectiveness of the employees’ principal activities.  The rule under the FLSA, as amended by the Portal-to-Portal Act, is that 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 U. S. Supreme Court reiterated that 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.” 

Fact That Employer Required Security Checks Held Not Relevant

The Court here found that the fact that the employer required and benefited from the security checks was not relevant.  The Court’s reasoning came down to this:  If the absence of the activity in question would impair the employees’ ability to perform the principal job functions efficiently and/or safely, then the activity is indispensable to the job, and the employees must then be paid for time they spend on those activities. It found that because the employees could have retrieved objects and filled orders without undergoing the security checks, waiting for and undergoing security checks was not integral to the job.  Therefore, the Court concluded they were not “working” during that time, and therefore they were not entitled to be paid for that time spent.

Good and Bad Coming Out of This Case

The Supreme Court here expressly rejected the Ninth Circuit’s test, which had focused on whether an employer required an employee to engage in a particular activity. The Supreme Court said that by failing to tie activities to the employee’s performance of productive work, the Ninth Circuit had broadened the definition of “principal activities” to include “the very activities that the Portal-to-Portal Act was designed to address” and exclude from compensation. The Court also rejected the employees’ argument that Integrity Staffing violated the FLSA because it could have acted to reduce the time spent in the security screenings to a de minimis amount.

This case focused only on security checks, but the decision could further limit the scope of what constitutes “integral and indispensable” activities.  This might signal a more limited view of an employee’s principal activities that could aid employers trying to determine the compensability of a host of pre- and post-shift activities.  However, it appears that pay for the donning and doffing time still stands, which seems inconsistent to some extent with this ruling and leaves some uncertainty still about what is and is not compensable pre- and postliminary activity.

If you have questions about your pay practices for calculating time worked for hourly employees, request a free consultation* with Adair M. Buckner, Attorney at Law.

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

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Article Topics:
Labor & Employment Law Legal News