Monday, October 13, 2014

Supreme Court Hears Amazon Workers’ Plea for Pay

On Wednesday, October 8, the U.S. Supreme Court heard oral arguments in the case Integrity Staffing Solutions, Inc. v. Busk,. In this case, the Supreme Court is reviewing a decision in which the Ninth Circuit ruled that employers, under the Fair Labor Standards Act (FLSA) and Portal-to-Portal Act, must compensate employees for the time spent in security screenings at the end of their shifts.

The company in this case is a warehousing firm that provides storage space and order fulfillment for companies that sell their products online, such as  The plaintiffs include Amazon warehouse workers who allege that they are required to undergo theft screening after they finish their shift and before they leave for the day. Plaintiffs assert that they have had to wait up to 25 minutes for this mandatory theft screening, for which they should be compensated.

The Ninth Circuit’s holding in Busk represents a departure from the case law established in other circuits, including our Seventh Circuit and it is the first circuit to hold that security screenings, whether they occur before or after the work shift, are compensable time.

The FLSA and related state wage statutes require employers to pay their employees at least minimum wage for all hours worked and to pay them time and one half for any work beyond 40 hours in a week. Congress passed the Portal–to–Portal Act of 1947 to narrow the coverage of the FLSA by excepting two activities that the Supreme Court had treated as compensable: “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities.”

The Supreme Court has interpreted the term “principal activity or activities,” as used in the Portal–to–Portal Act, to include all activities that are “an integral and indispensable part of the principal activities for which covered workmen are employed.”  The Seventh Circuit has found, for instance, that walking to or from an employee’s work station is not compensable nor is “donning and doffing” uniforms when such is not required to be done on site.

Interestingly, the Justice Department and the Department of Labor have filed amicus briefs in this case, despite the Obama Administration’s decidedly pro-employee stance in labor and employment matters.

The Supreme Court in Busk may take the opportunity to change the definition of postliminary and preliminary activities for pay purposes. Employers should take note of the Court’s decision as it may dictate a significant change in what employee activities are compensable.