If you have Amazon Prime, you get free delivery in two business days. If you want to pay extra (whether Amazon Prime or not), you can get your order the next day. So how long does it take for Amazon to get rid of a case the United States Supreme Court says is meritless? Seven years now ... and counting.
We've previously blogged the case of Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014). That case considered the issue of whether time spent by Amazon warehouse workers going through security checks at the end of their workdays was compensable. The case was initially filed in 2010. Reversing the U.S. Court of Appeals for the Ninth Circuit, a unanimous Supreme Court held in 2014 that the time was not compensable, concluding that the time spent was not "integral and dispensable" to the workers' duties.
That should have been the end of the litigation, as well as several similar cases against other retailers, but the Busk case itself has limped on. Undaunted by the Supreme Court's ruling, the plaintiffs amended their complaint to assert claims under Nevada and Arizona laws, where the warehouses were located. As the district court found, however, that didn't work either, as Nevada and Arizona construe their wage and hour laws in accordance with the FLSA. In Re: Amazon.com, Inc., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, MDL Docket No. 2504 (W.D. Ky., June 7, 2017).
The result in this most recent round of class action practice was not difficult to predict, as most states either follow the FLSA's substantive provisions fairly closely or have no equivalent at all (California, of course, being the most notable exception). It does, however, serve as a reminder that class action litigation can take on a life of its own, and even significant victories by the employer can fail to bring protracted litigation to a close.
The bottom line: Unsuccessful FLSA collective action plaintiffs may try end-arounds through state laws, but such tactics may do little more than prolong the obvious.
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