Should employees get paid for standing in line, waiting to be checked to make sure they haven’t stolen anything during the workday?
That’s the bottom line in a case now pending before the Supreme Court. It involves workers at an Amazon warehouse in Nevada who claim they should be paid for the time they spend going through security screening at the end of their shifts. A federal appeals court ruled in the employees’ favor, saying the screening was part of the normal process of warehouse work.
The suit actually involves an independent staffing firm, Integrity Staffing Solutions, which provides personnel for the Amazon warehouse.
The warehouse in question was facing employee theft problems, so it instituted post-shift security checks — which, employees alleged, delayed employees from leaving for up to a half hour.
The federal appeals court held that the screenings were “integral and indispensable” — the literal standard for employee activities that are compensable — because they were conducted for the company’s benefit and “necessary to the principal work performed.”
Decision could shift landscape
Why’s this case so important to employers? It could greatly expand a number of employee activities that have, up to this point, been deemed non-compensable — things that are “preliminary” (pre-shift) and “postliminary” (post-shift).
Employment law attorney James Nicholas, who specializes in wage-and-hour litigation for the law firm Mintz Levin, explained that should the Supreme Court uphold the earlier decision, “Activities which have historically been considered non-compensable — such as time spent waiting to punch a time clock, walking from an employer’s parking lot to the workplace, or changing into a uniform on the employer’s premises — would need to be reanalyzed (and re-litigated) under a new formulation of the ‘integral and indispensable’ test.”
In opening arguments before the court this week, attorneys for the staffing company argued that “going through security as part of the egress process is a class postliminary activity that is non-compensable under the Port-to-Portal Act.”
The employees’ legal argument was somewhat surprising, according to Nicholas. The employees’ position was simply that because the employer required the screening and it was in the employer’s interest, it was compensable — leaving alone the argument that the activity was “integral and indispensable.”
“That could be a bridge too far (for the court to cross),” said Nicholas, adding that he doubted the court would be amenable to adopting such a broad rule.
As might be expected, the justices seemed to lean a couple different ways during the opening arguments. A few of their comments from the court transcript:
- Chief John Justice Roberts (pro-employer): “No one’s principal activity is going through security screening. The employer doesn’t hire somebody … to go through screening. He hires them to do something and then the employee screening is certainly not the principal (activity).”
- Justice Elena Kagan (pro-employee): “… What makes it Amazon? It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is. And that’s just as integral to what Amazon does as … the person who closes out the cash register [or] the person who closes out the bank teller operation.”
- Justice Stephen Breyer (on the fence): ” …[I]n my own mind, I can think of five things I’d like to know about [the screening] activity … So shouldn’t we send it back so if [the employees] wanted to develop the record further, they can?”
Justice Breyer’s stance could indicate the way the court will finally go, Nicholas said: “[The employees] say the screenings can last up to 25 minutes, but they don’t offer any actual data. The easiest thing for the court to do would be to remand the case to the lower court to gather additional facts about the screening itself.”
The court is expected to release its decision early in 2015. We’ll keep you posted.