Employment Alert: U.S. Supreme Court – Federal Wage Law Does not Apply to Wait Time for Security Screening of Employees

In Integrity Staffing Solutions, Inc. v. Busk, et al. (Integrity), No. 13-433, the Supreme Court of the United States held the time spent by warehouse workers waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act.

Integrity Staffing Solutions, Inc. (Integrity) provides warehouse staffing for the online sales giant Amazon. The employees retrieve merchandise from warehouse shelves and package those items for delivery. Integrity required its employees to undergo a security screening before leaving the warehouse at the end of each day, which required them to remove certain articles like wallets, keys, and belts before passing through metal detectors. The plaintiffs alleged that the amount of time required to perform the security screening was roughly 25 minutes each day. It was undisputed the sole purpose of the screening was to prevent theft. The District Court dismissed the complaint for failure to state a claim. The lower court’s decision was overturned by the Ninth Circuit, which concluded that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for the employer’s benefit.

The Supreme Court reversed. After discussing the legislative intent underlying enactment of the Portal-to-Portal Act in 1947, the court focused on the statutory language limiting employer liability to activities which are “preliminary to or postliminary to said principal activity or activities.” The court considered whether the security screenings were (a) the “principal activities” the employees were employed to perform and (b) “integral and indispensable” to those activities. The court concluded the employees were hired for the primary purpose of retrieving products and not to undergo security screenings. It further provided that, in order to be “integral and indispensable,” the employee’s activity must be “an intrinsic element” of principal activities and one with which the employee “cannot dispense if he is to perform those activities.” While the court acknowledged the employer could conceivably reduce the time spent screening employees, it emphatically stated “[t]hese arguments are properly presented to the employer at the bargaining table . . . not to a court in an FLSA claim.”

Integrity places tangible limitations on the type of pre-shift and post-shift activities that are compensable under FLSA. Under the standard endorsed in Integrity, the activity the employee seeks compensation for must have a truly “indispensable” relationship to his or her principal activity. Perhaps most critically, Integrity supports the right of the employer to subject the employee to certain non-compensable activities as a condition of employment.

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December 10, 2014