Supreme Court: Time Employees Spend Waiting For Security Check is Not Compensable Under FLSA

Yesterday, a unanimous Supreme Court reversed the Ninth Circuit Court of Appeals (in  California) and held that the time (of allegedly 25 minutes per day) that the plaintiff warehouse employees spend waiting to leave work while going through a security checkpoint (to ensure that they were not stealing anything) is not compensable under the Fair Labor Standards Act.  Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (12-9-14).  The FLSA was amended in 1947 by the Portal-to-Portal Act specifically to exempt the time an employee spends before and after work on activities to get to and from work.   In this case, the employees’ principal job duties or “work of consequence” entailed filling customer orders and could be safely and effectively accomplished without the security checks.  Therefore, the security checks were not considered to be integral or indispensable for their job (unlike donning safety gear or preparing tools).  Similarly, waiting in line to exit an employer’s facility would be similarly noncompensable.   It was irrelevant that the employer mandated the security checks or benefitted from them or that they could be accomplished more efficiently without waiting the employees to wait so long.

According to the Court’s opinion, the plaintiffs were employed by the defendant staffing company at warehouses owned by Amazon.com.  They filed a class action which alleged violations of the FLSA by not paying them for waiting approximately 25 minutes per day to go through security checkpoints required by their employer to ensure that they are not stealing from the warehouse.  The trial court dismissed their complaint for failure to state a claim “because the screenings occurred after the regular work shift, the employees could state a claim for compensation only if the screenings were an integral and indispensable part of the principal activi­ties they were employed to perform.”  The Court of Appeals reversed on the grounds that the time spent benefitted the employer and were necessary for their principal work.  The Solicitor General joined, siding with the employer.  The Supreme Court reversed.

Soon after the passage of the FLSA in 1938, the Court had found compensable “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a pre­scribed workplace,” which included the time employees spent traveling between mine portals and work areas and the time walking from time clocks to work benches.  Congress swiftly enacted the Portal-to-Portal Act to exempt from compensable time the following:

(1) walking, riding, or traveling to and from the ac­tual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or sub­sequent to the time on any particular workday at which he ceases, such principal activity or activities.

                . . .

An activity is therefore integral and indispen­sable to the principal activities that an employee is em­ployed to perform if it is an intrinsic element of those activities and one with which the employee cannot dis­pense if he is to perform his principal activities.

The Court found the plaintiffs’ duties involving retrieving items in the warehouse to fill customer orders.  Therefore, the security screenings were not integral or indispensible to their work:

The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.

The Solicitor General cited to a 1951 opinion letter that found pre-shift security screening in a rocket-powder plant for flammable objects (such as matches, lighters, cigarettes, etc.) was similarly non-compensable.

“The Court of Appeals erred by focusing on whether an employer required a particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform. . . . . If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “princi­pal activities” the very activities that the Portal-to-Portal Act was designed to address.  

The Court also rejected the plaintiffs’ argument that the amount of time could be reduced to de minimis and suggested, instead, that they raise that issue in collective bargaining:

Finally, we reject the employees’ argument that time spent waiting to undergo the security screenings is com­pensable under the FLSA because Integrity Staffing could have reduced that time to a de minimis amount. The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relation­ship to the principal activities that an employee is em­ployed to perform. These arguments are properly present­ed to the employer at the bargaining table. . . .

We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his prin­cipal activities.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.