We noted in October that the U.S. Supreme Court recently held oral argument in a case considering whether time spent by employees passing through security screening lines on their way out of the employer's facility constituted working time requiring compensation. Well, now we have the answer: post-shift security screenings required by the employer are not compensable under the Fair Labor Standards Act and the Portal to Portal Act. In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court considered whether employees of a staffing company should have been paid for time spent waiting for and undergoing security screenings following their shifts at an Amazon.com warehouse after they had punched out from their shifts. The Court unanimously determined that, although the employer required the employees to undergo the screening before they could leave for the day, the time was not compensable because the screenings were not an "integral and indispensable part of the principal activities" that the employees were hired to perform.
In the majority opinion, Justice Thomas pointed out that the issue of whether the employees should have been paid in this case depends both on the Fair Labor Standards Act and the Portal-to-Portal Act, a federal law that limits liability for employers under the FLSA for activities that are "preliminary" or "postliminary" to an employee's principal work duties, meaning those activities that employees may perform before clocking in or after clocking out. The Court ruling traced the history of pre- and post-shift activities that had been found to be compensable in various cases and Department of Labor statements on the issue, including a 1951 Department of Labor Opinion Letter that found a pre-shift search of employees for certain items done for both safety reasons and to prevent theft, similar to the facts in the Integrity Staffing case, was not compensable. At its most basic level, the question to be answered was whether the activity at issue is integral and indispensable to the productive work that the employee was hired to perform.
In this case, the staffing agency employees were hired to retrieve and package goods from the warehouse for shipment to customers. The employees could have accomplished these tasks without having to go through a security screening. That the employer required the employees to undergo the screening did not make the screenings an "integral part" of the employees' duties. As Chief Justice Roberts noted during oral argument in the case, "Nobody hires a worker to go through security screening." The Court pointed out that if every employer-required activity were considered to be a principal activity that was indispensable to the performance of the job, the Portal-to-Portal Act amendments to the FLSA would be meaningless.
Although they also joined in the majority opinion, Justices Sotomayor and Kagan separately concurred, opining that an activity is indispensable only when an employee's ability to do the job safely and effectively would be compromised without it. Department of Labor regulations have used the example that battery plant employees must be paid for the time spent showering and changing clothes because certain battery chemicals are toxic, and the employees could not perform their jobs safely without taking these steps.
In light of the Supreme Court's recent decision, employers may wish to reexamine whether activities that they require hourly employees to perform before or after their shifts are an "integral and indispensable" part of the principal activities the employee was hired to perform. For example, if an employer requires that a welder check in with a supervisor before beginning his shift, the time spent locating the supervisor and conducting the check-in is likely not compensable. On the other hand, if that same employee is required to perform safety checks on his equipment before beginning his shift, such time is likely compensable under the Portal-to-Portal Act and the Court's decision (assuming there is not an existing agreement in place between the employer and the employee or the employee's union, as applicable). Employers will be wise to seek counsel on these issues as wage and hour litigation is still the most popular form of employment litigation in the federal and state courts.
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