WILL THE US SUPREME COURT FIND POST-SHIFT TIME SPENT WAITING IN EMPLOYER-MANDATED SECURITY SEARCH LINES COMPENSABLE? NOT LIKELY.
On Wednesday October 8th the U.S. Supreme Court will hear oral argument in the case of Busk v. Integrity Staffing Solutions. The issue: whether time spent by employees waiting in lines and then being searched before leaving work must be treated as ‘paid time’ under the federal Fair Labor Standards Act (FLSA). An article summarizing the case can be read here: https://www.nytimes.com/2014/10/04/business/justices-weighing-wages-for-after-work-screenings-.html?_r=0
The Court’s decision in this case may have a far-reaching effect on the ongoing struggle between employers who are trying to minimize costs and employees who want to be paid for all their time at work. This case involves a class action lawsuit – – similar to dozens of other class actions around the nation which depend on the decision in this case – – by employees at one of the warehouse and delivery companies contracting with Amazon, seeking pay for end of shift time spent waiting in lines before being searched as they leave the warehouse. Amazon and the companies they contract with were losing significant profits due to stolen products, so procedures and equipment were put in place requiring each employee to be searched before they were allowed to leave work at the end of their shifts. In turn, this created significant lines and waiting periods for the employees who had just finished twelve hour work shifts.
Amazon and their subcontracting warehouse & delivery companies argue that the search/waiting time does not have to be paid under the FLSA because the employees are not performing any work which is “integral and indispensable” to their principal work activities. The employees instead argue that since they are required to wait and be searched, for the purpose of their employer minimizing product theft (to the employer’s benefit), the time is necessarily related to their principal work activities, and they should be paid for the time.
The Supreme Court certainly can rule in favor of the employees and affirm the 9th Circuit decision. While commuting time going to and from work is not compensable under the FLSA, and while various “preliminary and postliminary” activities are also typically not compensable under the FLSA, the time at issue in this case: a) results from a mandate by the employer; b) for a process which benefits the employer (minimizing product theft); and c) is the final step in the ordinary course of business for each employee’s work day. In 2010 the 9th Circuit relied on these same factors to find time spent by employees while at home – – after their work day and commute had been completed – – performing data transmissions using a modem supplied by the employer, was compensable time under the FLSA. See Rutti v. Lojack, (9th Cir. 2010) 596 F. 3d 1046. So the Busk decision now being argued before the Supreme Court is consistent with 9th Circuit precedent. Further, unlike time incurred waiting to be searched in other scenarios (such as when entering or exiting airports or nuclear power plants) found not compensable under the FLSA (because the searches were not required by the employer but were required by federal regulations), the searches causing the end of shift waiting time in Busk occur solely because the employer has decided to implement such searches, for their own benefit.
Further still, a decision to affirm the 9th Circuit’s ruling in this case is not ‘deciding’ the case in favor of the employees, since all the 9th Circuit decided was that the employees’ claims should not be dismissed outright at the beginning of the litigation. The employer will have the remainder of the litigation to conduct discovery, obtain evidence, and make other motions before trial to possibly defeat the employees’ claims using various arguments, including that the time at issue is too small (or is “de minimis”) to be counted as paid time under the FLSA.
That said, the U.S. Supreme Court most likely will disagree with the 9th Circuit Court and rule that the search waiting time does not have to be treated as paid time under the FLSA. Why? First because under the Obama administration the Department of Labor (DOL) has surprisingly filed legal briefs in support of the employer in this case. Second, the Supreme Court is of course presently a 5:4 Republican majority, which is unlikely to find the employer should have to pay for this end of shift time simply because they wish to limit the theft occurring from their workplace. Third, and most important, recent decisions by this Supreme Court have not favored employees, including decisions making class action litigation more difficult for Plaintiffs/ employees, as well as a decision earlier this year which exhibited the extreme degree to which the Court will go to create anti-employee arguments specific to the FLSA (compliments of Justice Antonin Scalia). In the case of Sandifer v. U.S. Steel Corp. (2014) 134 S.Ct. 870, the Supreme Court was faced with deciding whether time incurred by steel mill employees donning (‘putting on’) and doffing (‘taking off’) protective gear before and after their shifts fell with the FLSA ‘clothes changing exception’ to paid time. In the course of concluding that the protective gear at issue was ‘clothes’ under the FLSA, making the pre and post shift time at issue not compensable, Justice Scalia cited to the dictionary, and declared:
“‘clothes’ is ‘a general term for whatever covering is worn, or is made to be worn, for decency or comfort.’ Webster’s Second 507 (emphasis added). But that definition does not exclude, either explicitly or implicitly, items with a protective function, since ‘protection’ and ‘comfort’ are not incompatible, and are often synonymous. A parasol protects against the sun, enhancing the comfort of the bearer—just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer.’” Sandifer, 134 S.Ct. at 877.
According to Justice Scalia, parasols are (apparently) also “clothes”, so the protective gear required to be worn by the steel mill employee certainly was “clothes”, and their time spent donning and doffing these protective ‘clothes’ before and after work shifts did not have to be treated as paid time under the FLSA. With that as the most recent Supreme Court decision involving whether pre or post shift time is compensable under the FLSA, it is difficult to believe the Court will do anything other than side with the employer on this case – – unless perhaps each of the nine Justices is required to literally stand in the shoes of the employees before deciding the case. In other words, work a twelve hour shift pushing carts up and down warehouse aisles, loading and unloading Amazon products for delivery, walk over 20 miles while doing so, and then stand in line for almost an extra half-hour waiting to be searched so the employer can minimize losses due to product theft, and then ask ‘should I be paid for this extra time?’