Tuesday, October 7, 2014
Is Time Spent Waiting to Clear Security Compensable?
On Wednesday the Supreme Court will hear arguments in Integrity Staffing Solutions v. Busk. The employer, Integrity, provides staffing for Amazon.com warehouses. Plaintiffs brought an opt-in class action under the FLSA (and a related state law claim), alleging that they were not compensated for time spent waiting to go through security screening after their shifts had been completed. Plaintiffs alleged that the time spent going through security, which included waiting in line and removing items from their pockets to go through a metal detector, were approximately 25 minutes. Plaintiffs were only required to go through the security screening at the end of their shift, as the security was aimed at detecting “shrinkage” – potential employee theft of merchandise from the warehouse.
The question is whether the time spent waiting in line and going through security is compensable time under the FLSA, as amended by the Portal-to-Portal Act. The Ninth Circuit held that it was compensable, as “integral and indispensable” to the employees’ principal activities. Integrity argues that a post-shift security screening is a “postliminary” activity under the Portal-to-Portal Act, that the security screen is not “integral and indispensable” to the principal activities of the warehouse workers, and that the time should not be compensable.
Our friend, Paul Secunda, discussed the case in this Washington Post piece, explaining how relatively small bits of time each day can add up to billions of dollars in these FLSA cases. Aside from the statutory interpretation arguments, there is a question about setting appropriate incentives. Integrity argues that if the security time is compensable, employees will have a strong incentive to “take their time” on their way through the security screen. (But couldn’t employers discipline employees for such loafing, just as they could for any other loafing on the job?) Conversely, as Paul suggests, if Integrity’s position prevails, employers will have little incentive to adequately staff the security screen to speed up the wait time. Unless, of course, the wait times grew so long that employees (at least those at the margins) began to quit or demand more pay, such that the market could correct for the problem.
The United States filed a brief in support of Integrity’s interpretation.