Supreme Court holds that Security Screening is not Compensable Work under the FLSA
Today, the U.S. Supreme Court issued a decision in Integrity Staffing Solutions, Inc. v. Busk that not only concluded the time employees spend undergoing security screening at the end of their shift is not compensable work, but also provided much needed guidance to employers on the type of pre- and post-shift activities that are noncompensable.
At issue in the case was a set of security procedures that warehouse employees were required to pass through after they clocked out at the end of their shifts, but before they exited their work premises. The employee-plaintiffs alleged that before they were allowed to leave, they had to remove personal belongings like wallets, keys, and belts, and then pass through metal detectors; a process which the employees alleged could take up to 25 minutes to complete.
The Supreme Court’s decision concluding that this time was not compensable turned on the Court’s interpretation of the Portal-to-Portal Act, a 1947 law enacted by Congress that 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 the principal activities that an employee is employed to perform. Although the Supreme Court had used the terms “integral” and “indispensable” in past decisions, it had never given those terms precise definitions. But that all changed today when the Court provided much needed guidance to employers on this issue.
The Court held that an activity is integral and indispensable to an employee’s principal activities only “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.” Certain pre- and post-shift activities clearly fall within this definition. For example, showering and changing into and out of protective clothing designed to protect employees from toxic chemicals, although preliminary and postliminary activities, are compensable work. Similarly, the time meatpackers spend sharpening their knives is compensable work.
However, time spent complying with an employer-imposed security checkpoint while exiting the workplace is not compensable. To come to this conclusion, the Court performed a two-step analysis. First, the Court pointed out that the screenings were not activities which the employees were employed to perform. After all, the warehouse employer did not employ its workers to undergo security screening, but rather, to retrieve products from the warehouse and prepare those products for shipment to customers. Second, the Court concluded that undergoing post-shift security screenings were not “integral and indispensable” to these principal duties because the screenings were not an intrinsic element of retrieving products from the warehouse and preparing them for shipment. Notably, the employer could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.
The Court was critical of other courts which had determined security screenings to be integral and indispensable to an employee’s principal activities simply because the activity was required by the employer. Significantly, the Court rejected this rule outright, opining that the proper test is whether the preliminary and postliminary activities are integral and indispensable to the productive work that the employee is employed to perform.
Furthermore, the Court summarily rejected an argument made by the employees that the time should be compensable because the employer could have taken steps to reduce the wait time to a de minimis amount, such as by hiring more security guards. The fact that an employer could potentially reduce the amount of time it takes employees to engage in preliminary and postliminary activities does not change the nature of the activity or the relationship of the activity to the employee’s principal duties.
At a time when warehouse employers need to take additional steps to ensure the integrity of their merchandise, particularly around the holiday season, today’s decision will allow these employers to take a collective sigh of relief. Furthermore, the guidance provided by the Supreme Court in today’s decision will allow all employers to better evaluate whether the preliminary and postliminary work performed by their employees is compensable work under federal law. Of course, employers must always be sure to follow any state and local wage and hour laws that provide greater protection to employees.