Well, the Supreme Court’s term is drawing to a close. Our next few blog posts will address major employment law issues the Court handed down this year. We’ll start with the Busk decision, which addressed whether the time an employee spends waiting in line for a security screening is compensable “work” under the FLSA. These posts are largely drawn form written material that was prepared by Caraline Rickard, an outstanding law clerk at our firm and a third year law student at Vanderbilt. Full credit goes to her.
In Integrity Staffing Solutions v. Busk, the Supreme Court was asked to answer a simple question: If an employee is asked to complete an activity for the employer’s benefit, at the employer’s request, and on the employee’s time, is that work compensable? The activity in question is a security check to ensure that employees do not take merchandise from their place of employment, and I would submit that the obvious answer to the question seems to be yes. As the practice of requiring employees to undergo security checks has become more and more common, a number of plaintiffs and lawyers have thought so, too, and companies ranging from Apple to CVS Health to J.C. Penny, have been hit with lawsuits demanding pay for the time employees must wait to undergo security checks. That is why it came as somewhat of a surprise when the Supreme Court rules in a 9-0 decision that this time was not compensable under FLSA. While a concurring opinion by Justice Sotomayor attempted to limit the reach of the decision, it could still have far-reaching consequences not only on security checks but also on a host of other pre- and post-work requirements.
The plaintiffs in Busk were a class of employees who were employed by the Integrity Staffing agency to work in a Nevada warehouse owned by Amazon.com. Their job was to retrieve products from shelves and package them for delivery. Employees were required to undergo a security screening before leaving each day. This screening required that employees remove items such as wallets, keys, and belts and pass through a metal detector, much like a security screening at an airport. Because employees had to wait in line for their turn to pass through the metal detector, this screening took approximately 25 minutes each day. Integrity Staffing did not compensate employees for this time. The employees argued that, because this screening was the sole benefit of the employer and because the screening took longer than necessary, they were entitled to compensation. The district court dismissed the complaint for failure to state a claim, but the Ninth Circuit reversed. The Ninth Circuit found that because the post-shift screenings were necessary to the principle work the employees performed and done for the benefit of the employer, the time spent on the screenings was compensable under FLSA.
The Supreme Court, in an opinion again written by Justice Thomas, began by reviewing the history of FLSA. Shortly after the Act’s passage, courts began interpreting its terms broadly. In 1944, the Supreme Court defined work as used in FLSA as “physical or mental exertion . . . controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” In 1946, workweek was similarly defined to include “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” According to the Court’s calculations in Busk, these expansive definitions led to 1,500 lawsuits that sought nearly $6 billion in back pay and liquidated damages for various pre- and post-shift activities. Congress responded to this flood of litigation by passing the Portal-to-Portal Act in 1947, which specifically exempted from FLSA’s overtime requirements time spent “walking, riding, or traveling” to and from the workplace and time spent on “activities which are preliminary to or postliminary to . . . principal activity . . . .” The Supreme Court subsequently interpreted principal activity to “embrac[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][e] all activities which are an integral and indispensable part of the principal activities.” The Court in Busk announced that an activity meets this requirement when it is “an intrinsic element of the [principal activities the employer is employed to perform] and one with which the employee cannot dispense if he is the perform his principal activities.”
Based on this definition of principal activity, the Court determined that because “Integrity Staffing does not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers,” the security screenings were not an “intrinsic and indispensable part of the principal activities” and thus were not compensable under FLSA. It rejected the Ninth Circuit’s test focusing on whether the employer required a particular activity and whether the activity was for the benefit of the employer because such a broad definition would “sweep into ‘principal activities’ the very activities the Portal-to-Portal Act was designed to address.” The Court also rejected the plaintiffs’ argument that they should be compensated for their waiting time because the screenings took longer than necessary, finding that “these arguments are properly presented to the employer at the bargaining table, . . . not to a court in an FLSA claim.”
In a concurrence joined by Justice Kagan, Justice Sotomayor claimed to completely agree with the Court’s decision, but she created some room for interpretation in two significant ways. First, Justice Sotomayor defined an activity as indispensable when “an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.” The Court, on the other hand, defined an indispensable activity as “one with which the employee cannot dispense if he is to perform his principal activities”—no mention of safely or effectively. Second, Justice Sotomayor clarifies the Court’s principal activities analysis, stating that “[she] understand[s] the Court’s analysis to turn on its conclusion that undergoing security screenings was not itself work of consequence that the employees performed for their employer.” This interpretation seems to me to flirt with the Ninth Circuit’s test looking at whether the work was performed for the benefit of the employer.
To summarize, Busk is most important for its definition of work that is “integral and indispensable,” and therefore compensable, as an activity that is “an intrinsic element” of the activities a worker is employed to perform and “one with which the employee cannot dispense if he is perform” his job duties. Busk tells us the requiring warehouse employees to undergo screening checks before leaving does not fit this definition. But I do not think Busk is particularly useful in supplying us with an real way to predict what other activities might or might not meet the Court’s test. Immediately following its definition, the Court attempts to both reconcile its definition with its past decisions and offer some guidance by referencing three other situations: battery-plant employees showering and changing clothes, meatpackers sharpening their knives, and poultry-plant employees waiting to don protective gear. The first two activities, the Court decides, are protected, battery-plant employees because “the chemicals in the plant were toxic to human beings” and meatpackers because “dull knives would slow down production . . ., affect the appearance of the meat [and] the quality of the hides, cause waste, and lead to accidents.” On the other hand, the latter was noncompensable because “waiting to don protective gear . . . was two steps removed from the productive activity on the assembly line.”
But the Busk Court succinctly states its position as, “Integrity Staffing did not employ its workers to undergo security screenings . . . .” Surely, the battery factory did not employ their workers to take showers, nor did the meatpacking plant employ butchers to sharpen knives. And even in the case of the poultry plant workers, the court found that the time actually spent donning and doffing protective gear was covered; it was only the time spent waiting that was not. Yet in Busk, the Court finds that the entire security screening is noncompensable; in fact, the Court specifically states that its holding applies to “employees’ time spent waiting to undergo and undergoing Integrity Staffing’s security screens.”
Because the Court’s criteria for finding when an activity is “integral and indispensable” is thus quite ambiguous, courts and parties alike are likely to find Justice Sotomayor’s concurrence especially helpful. Her addition of the words “safely and effectively” to the definition of indispensable activity is the only logical basis on which the examples the Court presents can be reconciled: showering and sharpening knives were necessary for employees to complete their jobs safely and effectively; donning protective clothing does protect the safety of poultry plant workers, while waiting to do so does not; and security screenings do not improve either the safety or effectiveness of Amazon warehouse packers. Given the weight that is likely to be given to Justice Sotomayor’s “integral and indispensable” test, the question must be asked which principal activities analysis will win: the majority’s “productive work that the employee is employed to perform” test or Justice Sotomayor’s “work of consequence that the employees performed for their employer.” If Justice Sotomayor’s opinion is also given weight here, it could potentially reach more activities than the first, since an employee is specifically employed to perform a certain set of tasks but could perform “work of consequence . . . for the employer” outside the tasks she is actually employed for.
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