United States: Supreme Court Holds Postshift Security Screenings Need Not Be Counted As Compensable Working Time

On December 9, 2014, the United States Supreme Court unanimously held in Integrity Staffing Solutions, Inc. v. Busk that employees are not entitled to overtime pay for the time spent waiting to undergo and undergoing required security screenings after the end of their normal work hours.

The Court's Decision in Integrity Staffing Solutions, Inc. v. Busk

In Integrity Staffing Solutions, Inc. v. Busk, the employer required hourly warehouse employees to go through a security screening before they left the premises, a policy designed to deter theft of goods. The screening process required removal of personal items and passing through metal detectors. Two warehouse employees filed a lawsuit alleging that they and similarly situated employees were entitled to compensation under the Fair Labor Standards Act ("FLSA") for the time they spent waiting to undergo and actually undergoing the security screenings, which, according to the employees, amounted to up to 25 minutes each day. Counting this time as compensable working time would, in many instances, entitle the employees to overtime compensation.

The district court dismissed the complaint for failure to state a claim and held that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA, which, as amended by the Portal-to-Portal Act, generally does not cover activities that are preliminary or postliminary to principal work activities. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed in relevant part and held that the employer had to pay overtime for the screening process, concluding that this after-work screening was a job requirement and was for the employer's benefit. In its rationale, the Ninth Circuit asserted that postshift activities that would ordinarily be classified as noncompensable postliminary activities were compensable as integral and indispensable to an employee's principal activities if the postshift activities are necessary to the principal work and performed for the employer's benefit.

Reversing the Ninth Circuit, and reaching the same conclusion reached by all other federal appeals courts that have decided cases on the issue, the Supreme Court held that the time spent waiting to undergo and undergoing security screenings was not compensable under the FLSA because the screening procedure was a postliminary activity that was not an "integral" part of the job. According to the Supreme Court, an activity is "integral" and "indispensable" to the principal activities that an employee is employed to perform "if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities."

In finding for the employer, the Supreme Court rejected the Ninth Circuit's test, which focused on whether the particular activity was required by the employer. If that were the test, according to the Court, it would sweep into "principal activities" the very activities that Congress had sought to limit under the Portal-to-Portal Act. Instead, the Supreme Court articulated that the proper analysis was whether the particular activity was tied to the productive work that the employee was employed to perform. Applying this test to the facts at hand, the Supreme Court found that the security screenings were not the principal activities the employees were employed to perform, i.e., the employees were not hired to go through screenings; rather, these employees were hired to take products off the shelves and package them for shipment to customers. Moreover, the Court noted that the employer could have eliminated the screenings without affecting the workers' ability to complete their work.

Practical Implications

The Supreme Court's test for determining whether preliminary and postliminary activities are compensable—whether the particular activity is intrinsically tied to the productive work that the employee is employed to perform—significantly narrows the types of preliminary and postliminary activities that are compensable under the FLSA. Preliminary and postliminary activities are not compensable solely because they are for the benefit of the employer. In light of the Supreme Court's holding, employers are well-advised to consider whether preliminary and postliminary activities are inherently germane to the principal activities that employees are employed to perform. Implicit in the Supreme Court's rationale is the notion that employees may be entitled to compensation under the FLSA when such preliminary and postliminary activities are integral and indispensable to the principal activities that an employee is employed to perform.

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