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High Court to Decide if FLSA Requires Worker Pay for Time Spent in Security Screenings

By Joanne Deschenaux    3/4/2014
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The U.S. Supreme Court will consider whether warehouse workers are entitled to compensation under the Fair Labor Standards Act (FLSA) for time they spend going through a security check after their shift ends (Integrity Staffing Solutions v. Busk, No. 13-433).

Integrity Staffing Solutions, which provides workers for warehouses that fill orders, had sought review of a 9th U.S. Circuit Court of Appeals decision concluding that the FLSA, as amended by the Portal-to-Portal Act, may require Integrity to pay warehouse employees for the time they spend emptying their pockets and passing through metal detectors before leaving the warehouse. The high court agreed to hear the case on March 3, 2014.

In April 2013 the 9th Circuit reversed a district court's dismissal of an FLSA collective action filed by two former Integrity employees who had been assigned to a Nevada warehouse. The appellate court ruled that, because the postshift security screenings are entirely for the employer’s benefit, the workers may be entitled to pay for the up to 25 minutes they sometimes wait to get through the security checkpoint.

Company Looks to Legislative Language and Court Precedent

In seeking review, Integrity said the 9th Circuit “disregarded the plain text” of the Portal-to-Portal Act, a 1947 amendment to the FLSA, which provides that a worker's “preliminary” and “postliminary” activities are not covered by the FLSA. The company also argued that the appellate court failed to follow Supreme Court precedent—“an unbroken line of authority”—that employees are not entitled to compensation under the FLSA for time spent in security screenings.

In Steiner v. Mitchell, 350 U.S. 247 (1956), and later cases, the Supreme Court construed the Portal-to-Portal Act as requiring employee compensation “only for tasks that are an ‘integral and indispensable part of the principal activities for which covered workmen are employed,' ” Integrity said.

The 9th Circuit decision is inconsistent with those high court rulings because security screenings are “a paradigmatic example” of an activity that is “preliminary” or “postliminary” to a worker's primary duties, Integrity argued.

Rather, the screenings are “indistinguishable” from many other tasks that courts have ruled noncompensable under the FLSA, such as waiting to punch in or out of work, walking from a parking lot to the workplace or waiting to pick up protective gear before a shift, Integrity said.

“All of these activities are ‘required' in a broad, but-for sense, but they are not compensable under the FLSA because such tasks are fundamentally distinct from employees' actual job duties,” the employer maintained, citing the Supreme Court decision in IBP v. Alvarez, 546 U.S. 21 (2005).

The 9th Circuit ruling also conflicts with the 2nd Circuit decision in Gorman v. Consolidated Edison Corp., 488 F.3d 586 (2007), and the 11th Circuit decision in Bonilla v. Baker Concrete Construction, 487 F.3d 1340 (2007), concluding that time spent in security screenings was not compensable, Integrity argued.

Former Employees Argue No Circuit Conflict Exists

In a brief opposing review, former Integrity employees Jesse Busk and Laurie Castro said a circuit conflict doesn’t exist because the other federal appeals courts haven't said time spent in security screenings is never compensable under the FLSA.

In the particular circumstances of this case, the 9th Circuit ruled that employee participation in the anti-theft screening process may be “integral and indispensable” to the workers' “principal activities” and, therefore, may be compensable under the FLSA, Busk and Castro said. “The central premise—and flaw—of [Integrity's] petition” is that all ‘security screenings’ are the same and that such activities can never be compensable under the FLSA and Portal-to-Portal Act,” they said.

Instead, the former employees said the nature of security screenings varies considerably depending on the workplace, and the 9th Circuit “manifestly did not hold that a ‘security screening' is always compensable.”

The ex-employees noted that the 9th Circuit remanded the case to the district court in Nevada for a decision on whether the time that warehouse employees spend going through security is actually “integral and indispensable” to their primary activities and, thus, compensable. The Supreme Court should not intervene, they claimed, simply because the parties disagree about one application of a settled legal test.

Oral argument in the case will be scheduled for the 2014-15 term, beginning in October 2014.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor. 


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