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Employers Do Not Have to Pay Employees for Time Waiting for Security Screenings

By Thomas P. Brady / Dec 10, 2014

Yesterday, the United States Supreme Court ruled that the employer at an Amazon warehouse in Nevada did not have to pay employees for time spent waiting in a security screening when entering or leaving the warehouse. Integrity Staffing Solutions, Inc., Petitioner v. Jesse Busk, et al., ___ U S ___ (Doc. No. 13-433, 2014).

Integrity Staffing operated an Amazon warehouse. The security rules required employees to go through a security screening before and after work. The employees estimated the combined daily waiting time for the security checks was 25 minutes. They brought a class action alleging the employer failed to pay them for the wait time.

The lower court dismissed the suit finding that the screenings were not an integral and indispensable part of the employer's operation but instead fell into a noncompensable category of postliminary activities. However, the Ninth Circuit reversed finding that, while the screenings were performed before and after the employees' working time, the screenings were nevertheless compensable as integral and indispensable to an employee's principal activities if those postshift activities are necessary to the principal work performed and done for the benefit of the employer. The Ninth Circuit reinstated the case.

On appeal, the Supreme Court noted that under the Portal-to-Portal Act, an employer was not required to compensate employees for "activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 29 U. S. C. §254(a).

The Court found that the screenings were not the "principal activity or activities which [the] employee is employed to perform." Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.

Moreover, the Court found that an activity is not integral and indispensable to an employee's principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees' ability to complete their work. The Court reversed the Ninth Circuit.

This case gives some guidance on determining what preliminary and postliminary activities employers must pay employees. If an activity is not integral and indispensable to an employee's principal activities it is not compensable, unless it is an intrinsic element of those activities and one with which the employee cannot dispense with if he is to perform those activities. The line being drawn is very fine, and we recommend that employers discuss with employment attorneys who are well versed in the Fair Labor Standards Act.

If you have any questions, please contact Thomas P. Brady at (313) 965-2891 | tbrady@clarkhill.com, or another member of Clark Hill's Labor and Employment Practice Group.