Written by Frank Hupfl
Last week, in Integrity Staffing Solutions, Inc. v. Busk, the United States Supreme Court issued a rare unanimous opinion holding that post-shift employee security screenings were noncompensable activities under the Fair Labor Standards Act because those screenings were neither the principal activity the employees were hired to perform nor integral or indispensable to the principal activity they were hired to perform.
Integrity Staffing Solutions provides warehouse staffing to Amazon.com throughout the United States. Jesse Busk and Laurie Castro worked as hourly warehouse employees for Integrity in its Las Vegas and Fenley, Nevada warehouses, respectively. Both Busk and Castro were responsible for retrieving products from the shelves and packaging those products for delivery to Amazon customers. At the end of each shift, Integrity required Busk and Castro and its other warehouse employees to pass through a security screening before leaving the warehouse for the day. The entire security screening process took roughly 25 minutes for an employee to undergo.
In 2010, Busk and Castro filed a putative class action against Integrity on behalf of similarly situated employees alleging violations of the FLSA and Nevada labor laws. Specifically, Busk and Castro alleged that the time spent waiting for and undergoing the security screenings was compensable time under the FLSA. The District Court dismissed the complaint, holding that the time spent waiting for and undergoing the security screenings was not compensable, but the Ninth Circuit Court of Appeals reversed finding that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for Integrity’s benefit, and thus compensable.
The Supreme Court’s Decision
On appeal, the Supreme Court reversed. The Court first focused on the history and purpose of the Portal-to-Portal Act, which was enacted in 1947 in response to a “flood of litigation” following a Supreme Court decision the prior year that broadly interpreted compensable time under the FLSA. In relevant part, the Portal-to-Portal Act created an exemption for compensation for “activities preliminary to or postliminary to [an employee’s] principal activity or activities.” Interpreting this language, the Court held that an activity is “integral and indispensable” to an employee’s principal activities – and thus compensable – if it is an “intrinsic element” of the employee’s activities and “one with which the employee cannot dispense if he is to perform his principal activities.”
The Court found that the security screenings were noncompensable postliminary activities for two reasons. First, the screenings were not the principal activity that plaintiffs were employed to perform – clearly they were hired to retrieve products from the shelves and package those products for shipment and not to undergo security screenings. Second, the security screening were not “integral and indispensable” to the employees’ duties as warehouse workers because Integrity Staffing could have eliminated the screenings altogether without impairing the employee’s ability to complete the work.
The Court made it clear that whether the employer required the employee to perform the activity was irrelevant; what matters is whether that activity was tied to the productive work that the employee was employed to perform. If that were the test, the Court noted, it would “sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address.”
This decision should blunt the impact of the existing wage-and-hour class actions that employees have filed around this issue and limit new lawsuits. However, employers would be wise to review any applicable pre- and post-shift activities they require of employees to determine whether they meet the standards set forth in Integrity Staffing Solutions. For employees left wondering how it could be that they are forced to participate in activities like the security screenings in Integrity Staffing Solutions without pay, the better approach, as Justice Thomas suggested, is to visit this issue at the bargaining table with your employer. Or, alternatively, employees should focus their sights on changing the Portal-to-Portal Act – the law where Congress decided activities like these should not be compensable.