• After-hours Time Spent by Employees for Required Security Checks Is Not Integral to the Employees’ Job and Not Compensable under FLSA
  • February 18, 2015 | Authors: Adam J. Detsky; Henry L. Solano
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - White Plains Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Denver Office
  • In Integrity Staffing Solutions, Inc. v. Busk et al., the United States Supreme Court ruled unanimously that workers who fill orders in Amazon.com warehouses need not be paid for the time they are required to spend waiting for and subsequently going through security screenings at the completion of their work day.

    The underlying class-action lawsuit was filed against Integrity Staffing Solutions, a company that provides workers for Amazon warehouses across the nation. The company staffed a warehouse responsible for shelving and shipping goods for delivery to Amazon.com customers. Following each shift, workers were required to undergo security screenings in an effort to prevent employee theft. The time in question amounted to approximately 25 minutes per employee in non-compensable time each day. The plaintiffs argued that they were entitled to compensation for this time under the Fair Labor Standards Act of 1938 (FLSA). The basis of their argument was that the screenings were conducted for the sole benefit of the employers and their customers and therefore integral and indispensable to the principal’s activities. The employer disputed these claims.

    The Ruling
    The Supreme Court ruled unanimously that workers who fill orders in Amazon.com warehouses need not be paid for the time they spend going through security checks to ensure they have not stolen any products. In the majority opinion written by Justice Clarence Thomas, the Court rejected the plaintiffs’ arguments that the security screening is “integral and indispensable” to the job they are hired to perform. This is distinct from whether an employer required a particular activity. Rather, “[t]he integral and indispensable test is tied to the productive work that the employee is employed to perform.” Justice Thomas elaborated that, for work to be “integral and indispensible” for FLSA purposes, the activity must be an intrinsic element of the work the employees were hired to perform. In this case, the Court found that the screenings were not an intrinsic element of the plaintiffs’ jobs ¿ namely retrieving products from warehouse shelves and packaging them for shipping.

    The Supreme Court examined the Portal-to-Portal Act, which was passed in 1947 for the purpose of exempting companies from having to pay overtime for certain activities that take place before and after a worker’s shift. The guidance in this area is not always clear (see, for example, 29 CFR 790.7), but here the U.S. Department of Labor supported the employer’s position, stating that “checking in and out and waiting in line to do so,” among other activities, is not compensable. Previously, the Supreme Court has identified activities that would qualify as integral and indispensable to a worker’s duties. For instance, the time battery-plant employees spend showering and changing was compensable because of the toxic chemicals in the plant, and similarly, for meatpacking workers the time related to sharpening knives is compensable because dull knives would make the workers less effective and affect the appearance of the product. See Steiner v. Mitchell, 350 U.S. 247 (1956)(battery plant); Mitchell v. King Packing Co., 350 U.S. 260 (1956)(meatpacking workers).

    In a separate, concurring opinion, Justice Sonia Sotomayor, joined by Justice Elena Kagan, opined that the Portal-to-Portal Act distinguishes the ingress and egress process from activities that constitute actual work of consequence and that the security checks at issue fall on the side of leaving the workplace.

    In ruling that time spent in waiting for loss control security checks at the end of the work day is not compensable time under the FLSA, the Supreme Court has effectively ended this burgeoning area of litigation. More than a dozen class-action lawsuits have been filed against Amazon and other companies that use security checks at the end of shifts to make sure none of their inventory walks out with the workers. Other companies that faced or are currently facing similar claims include Apple Corp. and CVS Health Corp.

    Practice Pointer
    While the security-check time will not be compensable under the FLSA, unions may push to require such time to be paid under the terms of a collective bargaining agreement, and state and local ordinances may expand pay obligations beyond that required by the FLSA. Wilson Elser’s national labor and employment attorneys are available to help employers navigate the various developing wage-and-hour issues.

    Author Henry Solano, Partner in the Denver office, is the former Acting U.S. Secretary of Labor and Solicitor of Labor. He has extensive FLSA experience.