On Dec. 9, 2014, the United States Supreme Court handed down a decision holding that the time spent by employees waiting to go and going through security screenings is not compensable under the Fair Labor Standards Act of 1938 (“FLSA”). Pursuant to FLSA and the subsequent Portal-to-Portal Act of 1947, workers are entitled to compensation for “work” or “work time,” but pay is not included for activities that are “preliminary or postliminary” to the work that employees are hired to perform.

The case, Integrity Staffing Solutions, Inc. v. Busk, was filed by Jesse Buck and Laurie Castro, who were hourly workers at Amazon.com warehouses in Las Vegas and Fenley, Nevada. Their duties primarily involved retrieving products from shelves and packaging these products for delivery to Amazon customers. Buck and Castro, as representatives of a putative class of workers, claimed that they were entitled to pay for the time spent waiting to go and actually going through anti-theft security checks, described as roughly 25 minutes. The trial court dismissed their claims stating that the screenings took place after the regular work shift and that under FSLA a claim for compensation could only be made if the screenings were an “integral and indispensable part of their job.” Instead, the screenings were part of the “postliminary” activities of their job. The 9th U.S. Circuit Court of Appeals in San Francisco disagreed with the trial court and found that the screenings were activities necessary to the work performed and done for the benefit of the employer.

Justice Clarence Thomas, writing for the Supreme Court in a unanimous decision, outlined decisions by the Supreme Court in the mid 1940s interpreting FSLA that defined “work” as “physical or mental exertion controlled or required by the employer” and “work week” as time that an employee was required to be at work, on duty or at a work site. According to Justice Thomas, these decisions resulted in a flood of litigation. In response Congress enacted the Portal-to-Portal Act which exempted compensation for two categories, namely walking, riding, or traveling to and from the actual place of work (“commute time”) and activities that occurred either prior to the start or subsequent to the work day.

Justice Thomas noted that this case involved the second category, particularly the question of whether or not the screening process at Amazon warehouses constitutes an activity that is preliminary or postliminary to an employee’s work. The security screenings were different from examples in earlier court decisions where activities were compensable, such as one where employees would have to spend time showering and changing clothes to get rid of the chemicals used in the manufacturing process or butchers who would spend time sharpening their knives to avoid having dull blades that would later result in a slow-down of production. These activities were, according to Justice Thomas, compensable because they were “integral and indispensable” to the work being performed. Indeed, they were based on safety and production concerns. In contrast, the security screenings at Amazon warehouses had nothing to do with the job of retrieving and packaging products for which Busk and Castro were hired.

Critics of the decision pointed to the mandatory nature of the screenings, to a deviation from the main objectives of the Portal-to-Portal Act, which was intended to exclude worker’s commutes from the time companies were required to compensate, or even to statements in the decision by Justice Thomas about the workers’ right to bring the issue of screenings to the bargaining table even though workers at Amazon are not unionized.

As for local governments, this decision also provides guidance for determining employee overtime. If the overtime work being performed is not “integral and indispensable” to the position, the municipality (or any employer) is not required to compensate the employee. Obviously, if the municipal employee is commuting to work this time will not be compensable under the first prong of the Portal-to-Portal Act. Additionally, as long as the activities prior to work or subsequent to the work day are not “integral and indispensable” to the municipal employee’s position, the municipality will not have to compensate the employee for this time.

Ultimately, the decision is a huge win for employers and provides additional guidance to employers as to what constitutes pre-shift or post-shift activities. It directly impacts workers at Amazon and other retailer warehouses, particularly at this time of the year when overtime demands increase due to the heavy shopping season. One other outcome may be that unions, heeding Justice Thomas’ statements, will use this decision as a basis to further define “work week” in their contracts.

Carlos S. Arevalo

Author: Carlos S. Arévalo