United States: Time Spent In Employer-Mandated Security Checks Held Non-Compensable

Last Updated: January 24 2015
Article by Loren Lee Forrest Jr.

Loren L. Forrest, Jr. is a senior counsel in Holland & Knight's New York office

U.S. Supreme Court Decision in Integrity Staffing Solutions, Inc. v. Busk Was Unanimous

HIGHLIGHTS:

  • Unless employees' activity is "integral and indispensable" to the principal activities of the employees' work, it will not be deemed compensable work.
  • The decision of whether employees' activities are integral and indispensable to the principal activity of the employees is based on a fact-driven analysis.
  • Even if the activity is required by the employer, benefits the employer and represents a significant amount of time, it may still be deemed non-compensable time.

In a recent U.S. Supreme Court decision, a unanimous court held that time spent by employees in mandatory security checks after work is not compensable, unless the screenings are "integral and indispensable" to the principal activities of the employees' work.

In Integrity Staffing Solutions, Inc. v. Busk, the employer – Integrity Staffing Solutions, Inc. - required all of its warehouse employees to be screened at security checkpoints in its warehouse. Integrity Staffing provides warehouse staffing to Amazon.com throughout the United States. Its employees retrieve products from the shelves and package those products for delivery to Amazon customers. The employees alleged that they were entitled to pay for waiting in line and undergoing the employer's mandatory security checks. The Supreme Court considered whether the employees' time spent waiting for and undergoing those security screenings was compensable under the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947. Reversing a decision by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court held that time spent by employees waiting for and undergoing security screenings before leaving the workplace was not compensable under the FLSA.

During the mandatory screenings, Integrity Staffing required its employees to remove items such as wallets, keys, and belts from their persons, and then pass through metal detectors. The reason for the security checks was simple: to prevent theft of Amazon products. Two Integrity Staffing employees filed a class action lawsuit on behalf of other employees in a similar situation and alleged that they were entitled to compensation under FLSA for time spent on the security screenings. Notably, the employees alleged that 25 minutes spent in security screenings each day could have been reduced to a de minimis amount by adding more security screeners or by staggering the termination of shifts so that employees could flow through the checkpoint more quickly. More importantly, the employees alleged that, because the screenings were conducted "to prevent employee theft," they were performed "solely for the benefit of the employers and their customers."

Courts Disagree Over Compensability of Postliminary Activities

The Nevada District Court dismissed the employees' complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA. Because the screenings occurred after the regular work shift, the district court explained that the employees could only state a claim for compensation if the screenings were an integral and indispensable part of the principal activities they were employed to perform. The district court held that these screenings were not integral and indispensable but instead fell into a non-compensable category of postliminary activities.

The U.S. Court of Appeals for the Ninth Circuit reversed and found that, although post-shift activities would ordinarily be noncompensable, the activities present were integral and indispensable to an employee's principal activities and therefore compensable, since they are necessary to the principal work performed and done for the benefit of the employer. The Ninth Circuit accepted as true the employees' allegation that the screenings were necessary to the employees' primary work as warehouse employees and done for Integrity Staffing's benefit.

The Supreme Court noted that, according to the Portal–to–Portal Act, employers are exempted from liability for work-related activities such as:

  • walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is to perform
  • activities which are preliminary or postliminary to the principal activity or activities

The Supreme Court noted it has consistently interpreted "the term 'principal activity or activities' to mean all activities that are an integral and indispensable part of the principal activities." As examples, the court noted that compensable time was previously found where battery plant employees showered and changed clothes because the chemicals in the plant were "toxic to human beings," and the employer acknowledged that changing clothes and showering were indispensable to employees' performance of productive work. Similarly, the court found that employees' time spent sharpening knives was compensable because dull knives would "slow down production" on the assembly line and lead to accidents. Conversely, the court has previously held that time spent by poultry plant employees waiting to don protective gear was non-compensable because the waiting was "two steps removed from the productive activity on the assembly line."

Given this framework, the Supreme Court held that the security screenings at issue were non-compensable postliminary activities because the screenings were not the "principal activity or activities" that the employees were hired to perform. On the contrary, the Supreme Court found that the employees were hired by Integrity Staffing to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. Given these facts, the court held that the security screenings also were not "integral and indispensable" to the employees' duties as warehouse workers. Drawing from a U.S. Department of Labor opinion letter, the Supreme Court noted that a pre-shift security search of employees in a rocket-powder plant for matches and other inflammatory materials for safety reasons and a post-shift security search of the employees to prevent theft were found not to be compensable.

The Supreme Court rejected employee arguments that the test could turn on whether the activity is for the benefit of the employer, that the employer's required security check made it a principal activity of the employer, and that the employees' argument that the employer could have reduced the time spent by employees in security screenings to a de minimis amount. The Supreme Court found that any claims regarding the reduction of time spent in security checks by employees were arguments to be presented not to a court of law but to the employer at the bargaining table in an FLSA claim.

Employers Need to Review Their Policies for Employees' Compensable Time

Employers dealing with issues of whether time spent by employees before or after work is compensable should closely review the Integrity Staffing Solutions, Inc. v. Busk decision. Deciding whether employees' activities are integral and indispensable to the principal activity of the employees is always a fact driven analysis. Employers should remember that the amount of time spent in preliminary or postliminary activities is not a deciding or even relevant factor. Similarly, requiring preliminary or postliminary activities of employees, even those that benefit the employer, will not make that employees' time compensable unless the employees' activity is integral and indispensable to their principal duties at work. While issues like theft and safety are critically important to any employer, wise employers should also understand that employee recruitment, morale and retention could be undermined and otherwise negatively influenced by forcing employees to be subjected to large amounts of noncompensable, but required, preliminary and postliminary time.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions