U.S. Supreme Court: No obligation to pay workers to go through security checks

By Joe DeSantis

Recently the U.S. Supreme Court ruled unanimously that an employer did not have to pay its employees for time spent waiting for and then going through a security check at the end of the day. In so doing it threw additional light on the question of which kinds of activities are “integral and indispensable” to a worker’s duties–and therefore compensable under the federal Fair Labor Standards Act (FLSA)–and which kinds are not. The case was Integrity Staffing Solutions v. Busk, et. al.

Integrity Staffing Solutions is a contractor to Amazon.com and was the employer of record for workers in Amazon’s warehouses. The workers were mainly “pickers and packers,” i.e., order-fillers for Amazon customers. Integrity required all of them to go through a security check at the end of their shifts, before they could leave the warehouse to go home, to make sure they had not pilfered any merchandise.  The security checks themselves took only a matter of minutes to complete. But as the practice evolved over time, it became typical for workers to have to wait on line as long as 25 minutes before they could go through the check.

Employees Jessie Busk and Laurie Castro sued Integrity Staffing Solutions on behalf of their fellow workers under the Fair Labor Standard Act, arguing that they should be paid for the waiting time and the security check time. The District Court dismissed their suit, ruling that the security checks were not “integral and indispensable,” in the language of FLSA, to their being able to perform their job duties. However, the 9th Circuit Court of Appeals reversed the District Court, accepting the plaintiff’s argument that the checks were integral and indispensable to their duties because the employer required them and only the employer benefitted from them.

The case held important implications mainly because it put workplace security checks—and by extension, any required worker activity outside of those that specifically define the job—under the FLSA  microscope. In a post-9/11 world where workplace security checks are a fact of life throughout the economy, the financial implications of the Court’s decision were huge. In fact the U.S. government itself, as one of the largest employers in the country, was interested in the outcome of the case and on record as supporting Integrity Staffing Solution’s position.

Judge Clarence Thomas wrote the opinion for the court. Citing the Oxford English Dictionary and Webster’s New International Dictionary, the court noted that “integral” means in part “forming an intrinsic portion or element (of a whole), as distinguished from an adjunct or appendage”; “indispensable” means a duty that cannot be dispensed with, remitted, set aside, disregarded, or neglected.” Going through a security check at the end of one’s shift is not integral to the job because the job itself can be performed without such a security check; neither, for the same reason, is the security check indispensable.  Shutting down a cash register at the end of a shift, or a gambling table at a casino, would be examples of activities that are integral and indispensable to one’s work activities.

The Supreme Court ruled that the Appeals Court erred in ruling that the security checks were integral and indispensable merely because the employer required them. By that line of reasoning, ruled the court, it would nullify the intent of the Portal to Portal Act, which defines the kinds of activities that are “preliminary” and “postliminary” to the job and therefore non-compensable. Anything required by the employer but not directly related to the job would become compensable.

The plaintiffs also had argued that because the waits were so long and did not have to be (i.e., could have been made de minimus by the employer by simply bringing in more security personnel), they should be compensable. Regardless of what that said about how the employer was handling the problem, the simple fact was that waiting, in and of itself, was not integral and indispensable to the job. That issue is something you resolve at the bargaining table, said the court.

Employers unsure of whether or not a given activity should be compensable for its non-exempt employees should, with the help of legal counsel, look at their situation in the light of this ruling.