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Time Spent Going Through Security Check Not Compensable, SHRM Says

By Joanne Deschenaux  6/10/2014
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The Society for Human Resource Management (SHRM) has joined several other business groups in filing a “friend-of-the-court” brief before the U.S. Supreme Court in a pending case, arguing that warehouse workers are not 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, brief filed June 4, 2014).

Integrity Staffing Solutions, which provides workers for warehouses that fill orders, was granted 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.

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 post-shift 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. The high court agreed to hear the case on March 3, 2014.

Resolution of Case Could Have Wide-Ranging Effect

The brief, on which SHRM is joined by the Retail Litigation Center, the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business, notes that routine post-shift security screenings of employees are conducted by many employers to help prevent theft. In the retail industry alone, employee theft imposes costs estimated at almost $16 billion each year, the brief says.

The resolution of this case could “have an effect on the compensability of the entire broad range of pre- and post-shift screenings, conducted by employers to ensure the security of employers’ property and the safety of employees and the public,” the brief continues, noting that prior to the 9th Circuit decision, employers were able to rely on a uniform body of case law holding that security screenings are not compensable under the Portal-to-Portal Act and regulations adopted by the U.S. Department of Labor.

Appellate Decision Runs Counter to Established Law

Congress, responding to what it believed had been overly expansive interpretations of the FLSA, narrowed the statute’s scope over 50 years ago by enacting the Portal-to-Portal Act, the brief notes. That act provides that employers are not required to compensate an employee for activities which are “preliminary” or “postliminary” to “the principal activity or activities for which such employee is employed to perform.” 29 U.S.C. Section 254(a).

The Portal-to-Portal Act does not define what constitutes “principal activity or activities,” and it does not define what it means for an activity to be “preliminary” or “postliminary.” However, 10 years after the act’s passage, the Supreme Court held that “principal activity or activities” includes pre- or post-shift activities that are themselves an “integral and indispensable part” of the principal activities for which the employee is employed.

The 9th Circuit decision, the brief argues, “undermines the decades-old understanding of the Portal-to-Portal Act by doing away with the requirement of a close and intertwined relationship between the productive work for which an employee is hired and the activity for which the employee seeks additional compensation.”

The 9th Circuit’s test, the brief further says, “would force employers to choose between incurring greater costs to retain security screenings, which are a critical tool to address workplace security and theft, and forgoing or reducing security measures so as not to incur additional labor costs. This would result in decreased workplace safety, increased losses due to theft, and ultimately increased costs for the U.S. consumer.”

Federal Government Agrees with SHRM Position

The U.S. Department of Labor’s Wage and Hour Division is responsible for enforcing the FLSA as amended by the Portal-to-Portal Act and has issued interpretive regulations that address what kinds of “preliminary” or “postliminary” activities are not compensable under those laws. 

The federal government, therefore, has an interest in the outcome of the litigation, and has filed its own friend-of-the-court brief, agreeing with the position taken by SHRM and the other employer groups. 

“Petitioner’s post-shift anti-theft screenings were noncompensable because they were not ‘integral and indispensable’ to the work performed by its warehouse employees,” the government’s brief notes.

“Here, the anti-theft screenings following the completion of the employees’ shifts were not closely intertwined with their principal activity of filling orders in the warehouse, and the court of appeals’ focus on whether they were done for the employer’s ‘benefit’ was an insufficient proxy for determining whether they were integral and indispensable to a principal activity,” the government’s brief says.

Oral argument in the case is not yet scheduled but will be held during the 2014-15 term, which begins in October 2014.

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

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