2nd Jan 2015

On December 9, 2014, the United States Supreme Court issued its decision in Integrity Staffing Solutions, Inc. v. Busk, a case involving a challenge under the Fair Labor Standards Act (“FLSA”) brought by warehouse workers who worked for Amazon.com. As an anti-theft measure, Amazon.com required the warehouse workers to undergo a security screening before leaving the warehouse each day. The evidence in the record indicated that as a result of the wait time and security screening itself, each employee spent approximately 25 minutes between the “end” of their shift and when they were allowed to leave the Amazon facility; the employees were not compensated for this time.

The case went to the Supreme Court after the United States District Court dismissed the complaint because it found the security screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and noncompensable. The employees appealed this decision to the United States Court of Appeals for the Ninth Circuit which reversed the District Court, in relevant part, after ruling post shift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the post shift activities are necessary to the principal work and performed for the employer’s benefit.

The Supreme Court focused on the meaning of the phrase “integral and indispensable” which it explained is “tied to the productive work that the employee is employed to perform.” The Supreme Court then took the logical step of holding “an activity is integral and indispensable to the principal activities that an employee is employed to perform – and thus compensable under the FLSA – if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” In other words, the preliminary and postliminary activities are only compensable if the employee is unable to perform their principal activities without them.

Although this holding does not preclude employees in various industries from challenging their employers’ decision not to pay them for various preliminary and postliminary activities, it adds yet another hurdle to employees seeking to be paid for all the time they spend performing tasks required by their employer. The decision also raises questions about a variety of preliminary and postliminary activities in other industries. Must an employer compensate employees who work in telephone banks for the time spent waiting for their computers to boot up? Are employees such as cashiers entitled to be paid for time spent waiting for audits to be performed after their shift ends? Should servers be paid for the time spent by managers counting and/or dividing tips after their shift? Questions such as these will likely have to be answered time and time again by courts throughout the country that will undoubtedly be presented with these issues either for the first time or for reconsideration in light of the Busk ruling.

Another interesting part of the Busk decision was the Supreme Court’s rejection of the employees’ argument that time spent waiting to undergo the security screenings should be compensable under the FLSA because the employer could have reduced that time to a de minimis amount by taking measures to streamline the security screening process, such as by hiring additional security personnel or staggering the end times of the warehouse workers’ shifts. The Supreme Court stated: “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.” It went on to opine that issues such as this were “properly presented to the employer at the bargaining table . . . not to a court in an FLSA claim.” So there you have it. Actual language from this Supreme Court, penned by Justice Thomas, encouraging the unionization of workplaces around the country.

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