Supreme Court to Decide Whether Security Screening Constitutes Compensable Work

October 9, 2014
Legal Update

Yesterday, the U.S. Supreme Court heard oral argument in Integrity Staffing Solutions, Inc. v. Busk, a case that will decide whether the time it takes employees to pass through a security checkpoint constitutes “compensable work” under federal law.

The case involves a set of security procedures that warehouse employees must pass through after they clock out at the end of their shifts, but before they exit their work premises.  The employee-plaintiffs allege that before they are allowed to leave, they must remove personal belongings like wallets, keys, and belts, and then pass through metal detectors; a process which the employees allege can take up to 25 minutes to complete.  The defense contends the process is much shorter and often results in little to no waiting time for employees.

The case is on review from a decision of the Ninth Circuit Court of Appeals which concluded that the time spent complying with these security protocols was compensable.  The decision is contrary to 2007 decisions from the Second and Eleventh Circuits finding that time spent traversing security procedures was not compensable.  The Fair Labor Standards Act, as amended by the Portal-to-Portal Act, excludes from compensable time “preliminary” and “postliminary” activities – those pre- and post-shift activities, including walking, waiting, and traveling, that are not “integral and indispensable” to an employee’s principal duties.  The Ninth Circuit held that end-of-shift security screens at the warehouses were not “postliminary activities” because they occurred on the work premises and were designed to prevent employee theft.

Based upon questioning that took place during the oral argument before the Supreme Court, it appears that the case will likely turn on whether a majority of the Justices believe that these types of security procedures are principal activities because they are required by the employer and for the employer’s benefit, or whether a majority believe that these types of security procedures are postliminary activities because they occur as part of the employees’ egress from the facility at the end of their shift.  Based upon her questioning, Justice Kagan appears to squarely fit within the first category.  She would equate these types of security procedures to anti-theft procedures utilized by cashiers and bank tellers at the end of their shifts—activities which Justice Kagan pretty clearly would consider compensable. Justice Scalia and Chief Justice Roberts, on the other hand, appear to fit within the second category, commenting that the security procedures cannot be considered principal activities because nobody hires an employee simply to pass through a security checkpoint.

As is typical in cases of this nature, the Supreme Court asked the United States government to weigh in and identify its position with respect to the compensability of these security checkpoints.  The United States sided with the employer and argued that this time is not compensable because it is not “integral and indispensable,” likening the security screening process to the non-compensable activity of checking in or checking out for work.  This is significant because at least one Justice—particularly, Justice Breyer—appeared as though he may simply defer to the position taken by the government in this case.  Because Justice Kennedy, who typically is the swing vote in close cases, asked questions that tend to suggest that he will side with the employees, it may be that Justice Breyer will be the swing vote in this case.

Ultimately, it is impossible to predict how the Supreme Court will decide this case.  The decision will likely have a substantial impact on several other security-screening lawsuits across the country where similar allegations are at issue, many of which are on hold pending the Supreme Court’s decision in Busk.  The decision may have even broader impact because the Supreme Court may provide general guidance to help define the parameters of an employee’s compensable workday.  In other words, the Court’s decision could shape the legal landscape for years to come regarding the compensability of all preliminary and postliminary activities, not just the compensability of security checkpoints.  And experts predict that the financial impact of the decision could be in the billions.  Therefore, all employers, particularly those in the warehousing, distributing, and similar industries, should be on the lookout for a decision from the Supreme Court by no later than June.

For more information, please contact Eugene Droder III, Kyle Johnson, or any attorney in the Frost Brown Todd Labor and Employment practice group.

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