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As a follow up to the post on our Blog in early October, which described the U.S. Supreme Court hearing oral argument on a case involving whether the employer had to pay employees for post-shift time spent waiting in line and being searched, the decision on that case was just issued (on December 9, 2014): in an unanimous 9-0 decision, the Court in Integrity Staffing Solutions, Inc. v. Busk, (2014) 2014 WL 6885951 decided that under the Fair Labor Standards Act (FLSA; the federal wage law) Amazon (and their sub-contractors) did not have to pay warehouse employees while they waited in line and then were searched, after working 12 hour shifts in the warehouses.  This decision – – because it was unanimous, and based on the simplistic way in which it applies the FLSA, should be disturbing for public employees and their unions.
The ruling reversed the underlying 9th Circuit decision, which had found that the employees presented legitimate claims for pay for the search/waiting time based on various federal regulations and cases holding pre or post shift time compensable if the employer requires the tasks causing the time to be incurred, or if the employer benefits from the tasks – – instead the U.S. Supreme Court held based on other authorities that pre and post shift time can only be compensable under the FLSA if it is integral and indispensable to the employees’ core duties. In a relatively short decision, Justice Clarence Thomas states “ did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.”
So based on this logic can an employer require employees to perform, for no pay, whatever pre or post shift tasks the employer decides should be done – –   as long as those tasks are not an integral and indispensable part of the employees’ core duties? Apparently ‘yes.’ Does it matter if the employer requires these pre and post shift duties for the sole purpose of benefitting the employer? Apparently ‘no.’ As the U.S. Supreme Court just decided, tasks which are not ‘what the employees were hired to do’ are not necessary for the completion of their principal duties, and therefore are not compensable under the FLSA.
Other Court decisions have found pre or post shift time involving being searched not compensable, but there has been consideration given to whether the searches benefitted the employer.  For example, search time at airports or nuclear power plants has been found not compensable because the searches were required by federal law or agencies, not by the employer, and because there was no direct benefit to the employer (rather, public safety necessitated the searches).  Conversely in this Integrity Staffing decision Amazon and their subcontractors decided on their own to institute the post-shift searches, for the sole purpose of controlling the theft of products from the warehouses, which obviously benefits only the employer.  
If the Supreme Court intends to further clarify the FLSA with this decision, such that any time not directly related to the principal duties for which employees were hired does not have to be paid, exactly where does that theory end?  There is no limitation stated by the Court on how much time may be incurred by employees performing pre or post shift tasks required by the employer, for which they receive no pay, and which are not directly related to their principal work duties.  The employees in this Integrity Staffing case incurred as much as twenty-five minutes per day – – which may not sound like a lot, but at the end of 12 hour shifts spent walking constantly through the aisles in massive warehouses, is very significant for these employees. But even if twenty-five minutes is not regarded as much of a burden on the employees, what is? 45 minutes? An hour? Two hours?  Under the Integrity Staffing decision just issued, if Amazon and their subcontractors decided that more thorough searches were needed, and that searches had to be done both at the start and end of shifts, and further that they wanted to limit their costs such that only one person oversaw and ran the searches – – all resulting in two extra hours on the employer’s premises for the employees each day, for no extra pay, the Supreme Court is saying – – at least under the FLSA – – that is just fine.
Fortunately private sector employees in California do not have to rely on the FLSA, but instead are protected by the overtime pay and minimum wage requirements set by California wage law, which in turn rely on a more logical ‘control’ approach to determine compensable hours worked.  Under this standard, if the employer controls the pre or post shift tasks required, the time is compensable.  Public employees in California, however, are generally not covered by CA wage law, and must rely on the FLSA.  The Supreme Court’s decision in Integrity Staffing should, if nothing else, remind public employees and their unions of the importance of negotiating all the specific details associated with pay in collective bargaining agreements – – that may be your only authority to ensure pay for all time required by and for the benefit of the employer.
 

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