Postliminary Activities Not Compensable

Do your employees undergo security screenings either before or after work? Is time spent in this activity compensable time under the Fair Labors Standards Act? In Integrity Staffing Solutions v. Busk, 574 US ____ 2014 (December 9, 2014) employees were required to undergo security screening before leaving the warehouse each day. Former employees sued the employer, Integrity Staffing Solutions, alleging they were entitled to compensation for the security screening time of approximately 25 minutes per day.

The Ninth Circuit Court of Appeals agreed with the employees finding that the screenings were required by and benefited the employer. Under the Portal to Portal Act, most post work activities are generally not compensable. The Court of Appeals said that the security screening was compensable as “integral and indispensable to the principal activities performed by the warehouse workers.

The United States Supreme Court disagreed and reversed the Ninth Circuit decision. The unanimous Supreme Court opinion written by Justice Thomas found: (1) The security screenings were not the principal work the employees were employed to perform. They were employed to retrieve and ship products from the warehouse. (2) The security screenings were not integral and indispensable to the warehouse work. The department of labor issued an opinion letter in 1951 that held post shift security searches as non compensable under the Portal to Portal Act. (3) The Ninth Circuit test of whether or not the activity is required by the employer would swallow the Portal to Portal Act exclusions from compensations. (4) Whether time for security screens could be reduced is an issue for the bargaining table and not the court.

Based on the Supreme Court decision, Integrity Staffing Solutions v. Busk pre or post shift security screenings are not compensable time. This opinion along with the decision last term excluding donning doffing activities from compensable time are favorable decisions for employers and may provide opportunities for employers to make adjustments in future collective bargaining agreements, employed so with their attorney prior to implementing any changes in order to discuss the impact of these decisions on employment arrangements in labor relationships.