Supreme Court Decides Time Spent to Undergo Security Screening is Noncompensable

The time warehouse workers spent waiting to undergo and undergoing antitheft security screenings before leaving work is not compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et. seq., as amended by the Portal-to-Portal Act of 1947, §251 et. seq. (Portal-to-Portal Act), according to the United States Supreme Court, which unanimously decided Integrity Staffing Solutions, Inc. v. Busk on December 9, 2014.

Compensable work has been interpreted under the FLSA to mean work the employee is required to perform, and defined in the Portal-to-Portal Act to include activity that is “preliminary to or postliminary to said principal activity or activities.” In Integrity Staffing, the Supreme Court concluded that this statutory language means activity “with which the employee cannot dispense if he is to perform his principal activities.”

Integrity Staffing Solutions employees Jesse Busk and Laurie Castro (collectively referred to as “Busk” or “Respondents”), worked as hourly employees in warehouses retrieving inventory and packaging shipments for delivery to Amazon customers. At the end of each workday ─ after clocking out ─ they were required to undergo antitheft screening whereby they had to remove wallets, keys and belts from their persons and pass through a metal detector. They alleged that waiting to undergo the screening and actually undergoing the screening could take up to 25 minutes to complete and constituted compensable time under the FLSA, reasoning that the screening benefited only Integrity and its customers and not the warehouse employees. They also contended that this time could have been reduced to a de minimis amount were additional screeners added or shifts ended at staggered times.

The District Court of Nevada dismissed the action, holding that the screening was not an “integral and indispensable part of the principal activities they were employed to perform.” On appeal, the Ninth Circuit reversed and held that the screenings are “integral and indispensable” because they are “necessary to the employees’ primary work as warehouse employees and done for Integrity Staffing’s benefit.” But The Supreme Court agreed with the District Court and reversed the Ninth Circuit by a vote of 9-0. Justice Thomas delivered the opinion for the Court. Justice Sotomayor wrote a concurring opinion joined by Justice Kagan.

The Court explained that the “principal activity” of the employees was to retrieve products from the shelves and package them for shipping. Their principal activities did not include waiting to undergo and actually undergoing security screenings. The Court reasoned that the screening was not “integral and indispensable” because if Integrity Staffing eliminated the security screening procedure it would not impair the employee’s ability to perform their job duties. Additionally, the Court noted that its interpretation of the statute was consistent with a 1951 Department of Labor letter opinion that found preshift screenings for employee safety and postshift screenings to avoid theft were noncompensable under the Portal-to-Portal Act. Finally, the Court rejected the argument that Integrity Staffing could have implemented alternative procedures to make the wait time de minimis. The Court found the argument better suited for the bargaining table rather than the courtroom.

While the Supreme Court’s decision is certainly a win for employers, employers should still be guided by collective bargaining agreements, and other employee agreements, that may specifically address the issue of compensation for postliminary security screenings.

If you have any questions regarding the court’s ruling and wage and hour issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Department.

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