United States: U.S. Supreme Court: Antitheft Security Screening Not Part Of The Job For FLSA Compensation Purposes

Employers across the country are breathing a sigh of relief following the December 9, 2014 unanimous ruling of the U.S. Supreme Court that time spent by warehouse workers waiting for and undergoing antitheft security screening is not compensable time under the Fair Labor Standards Act (FLSA). Integrity Staffing Solutions, Inc. v. Busk et al., No. 13-433. The opinion is of significant import for many of the nation's largest employers, as security screening and bag checks have become an increasingly ubiquitous part of an employee's ingress and egress to and from work. Indeed, the significance of this ruling is underscored by the spate of class-action suits that were filed after the U.S. Court of Appeal for the Ninth Circuit's determination in Busk et al. v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (2013), which held that such time could be compensable under the FLSA. Like the Busk litigation, the suits that followed the Ninth Circuit's ruling have been brought by employees seeking back-pay for time spent in security screening, and represented massive potential liability. Justice Thomas authored the majority opinion that reversed the Ninth Circuit's holding in Busk with a concurring opinion authored by Justice Sotomayor and joined by Justice Kagan.

The case that spawned the Supreme Court's decision, Busk v. Integrity Staffing Solutions, No. 2:10-cv-1854 (D. Nev. Dec. 15, 2010), was brought against defendant Integrity Staffing Solutions, Inc. by the plaintiffs, warehouse workers employed by Integrity Staffing to work in Amazon.com fulfillment centers locating and preparing merchandise for shipment to Amazon.com customers. After clocking out at the conclusion of their shifts, the plaintiffs would exit the warehouse, passing through a security check that required them to remove items such as wallets, keys, and belts and pass through a metal detector. The plaintiffs claim that they, and workers like them across the country, should be paid for the security screening time. The Supreme Court, however, disagreed.

The Court's ruling clarifies its precedent regarding tasks that are excluded from compensable work time by virtue of their being preliminary or postliminary to an employee's principal activity under the Portal-to-Portal Act. Specifically, the Court explained that it had consistently held that the term "principal activity" is expansive enough to encompass not only those tasks an employee is employed to perform, those that are obviously principle activities, but also tasks that are an "integral and indispensable" part of the principal activities. The Court went on to explain that because the words "integral" and "indispensable" are to be given their plain and ordinary meanings, an activity is integral and indispensable to the principal activities only "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 reasoned that warehouse workers are not hired to undergo security screening and that such screening is not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. That is, the Court explained, warehouse workers are just as able to perform the activities for which they are employed without the screenings as they are with them. The Court concluded, therefore, that security screenings performed after the conclusion of the plaintiffs' shifts were not integral and indispensable to their principal activities as warehouse workers and the time spent undergoing the screenings is not compensable under the FLSA.

The Court took specific issue with the Ninth Circuit's interpretation of the "integral and indispensable" test, saying that it erred by focusing on whether the particular activity at issue was required by the employer. Indeed, as the Court pointed out, if it were enough to merely show that a particular task was required by the employer to satisfy this test, it would nullify the Portal-to-Portal Act, "sweeping into 'principal activities' the very activities [that Act] was designed to address."

What This Means for Employers

The Supreme Court's decision helps to clarify the principles used to determine what constitutes a compensable activity, adding much needed focus to the legal discourse that had gone far afield with the Ninth Circuits decision in Busk. However, litigation will certainly continue in this area due to the need for clarity with regard to which elements of productive work are actually indispensable or an intrinsic element, leaving the legal profession to argue over the difference between the time it takes a butcher to sharpen her knives or the time it takes a battery plant worker to don protective gear (two tasks that have been deemed compensable, and the time a poultry-plant employee spends waiting to don his protective gear (a task deemed noncompensable, being two steps removed from the productive work). Indeed, Justice Sotomayor's concurring opinion seems primarily directed at offering some further guidance as to what constitutes indispensability, explaining that in her view, the term must signify a task that is required not just for the productive work to actually be performed, but to be performed "safely and effectively."

While the Supreme Court's decision finds the time spent in security screenings is not compensable under the FLSA, the result may be different under state wage and hour laws. Prudent employers should check with their counsel before relying on the decision in states that have their own wage hour laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions