Supreme Court asked to decide another Wage and Hour issue


Another wage & hour issue to be decided by the Supreme Court
Another wage & hour issue to be decided by the Supreme Court

About a year ago I wrote a post called Supreme Court to decide on the Definition of “Clothes”. I thought at that time it was ridiculous to have the highest court in the land decide such trivial things. I envision them deciding groundbreaking and monumental things. But now they are being asked again to decide what on the surface appears to be trivial. They are going to decide if “passing through security” is a compensable activity under the Fair Labor Standards Act.
The case is that of INTEGRITY STAFFING SOLUTIONS V. BUSK. At issue is:

Respondents are warehouse workers who seek back pay, overtime, and double damages under the Fair Labor Standards Act (“FLSA”) for time spent in security screenings after the end of their work shifts. Relying on an unbroken line of authority from other jurisdictions, the district court dismissed Respondents’ claims because security screenings are quintessential “preliminary” or “postliminary” activities that are non-compensable under the FLSA pursuant to the Portal-to-Portal Act of 1947. The Ninth Circuit reversed, holding that time spent in security screenings was compensable under the FLSA because it was “necessary to [Respondents’] primary work as warehouse employees.” That holding squarely conflicts with decisions from the Second and Eleventh Circuits holding that time spent in security screenings is not subject to the FLSA because it is not “integral and indispensable” to employees’ principal job activities.

Essentially it comes down to the SCOTUS deciding if standing in a security line is necessary to the job and thus compensable or is it not an integral part of the job and thus has to be done on the employee’s own time.
My thoughts
My first reaction to this was “what a major waste of valuable resources.” My second thought was “just how long was this security process taking that these guys complained that they wanted paid for it?” My third thought was “I wonder if these guys are always late getting to work and standing in line for security now made them later and they were getting in trouble and saw this complaint as a way to get out of it?” Regardless of the reasons it does have to go to the Justices to decide.
Lessons for employers
The fact that something like this can make it to the Supreme Court shows that we should never take anything as trivial. This decision will not be rendered until the next session of the SCOTUS, so those of you with security procedures will have to wait until then for an answer on if you need to pay for this time. For the rest of us it is a reminder to review process that employees have to go through to be at work. Is there anything that could be considered to be essential to the job for which they should be compensated? It might not hurt to take a second look, especially with all the TV lawyers today reminding employees that they might not be paid correctly.
Head nod to Sara Dionne, Andrew Livingston,and Shannon Seekao  of Orrick.
Image courtesy of Phaitoon /

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