TBA Law Blog


Posted by: Christy Gibson on Jan 16, 2015

By: John R. Bode and Jennifer W. Terry[i]

On December 9, 2014, the U.S. Supreme Court ruled employees who are required to wait in line to pass through a security check before leaving at the end of their shift are not entitled to compensation for that time.[ii] In a unanimous decision written by Justice Thomas,[iii] the Court held that such time was not “integral and indispensable” to the employees’ principal activities, and was, therefore, non-compensable under the Fair Labor Standards Act.[iv]

In Integrity Staffing Solutions, Inc. v. Busk,[v] the plaintiffs worked for a staffing agency at an Amazon.com warehouse in Nevada. As warehouse employees, the plaintiffs picked merchandise to fill orders and packaged those orders for shipment. At the end of each shift, employees were required to wait up to 25 minutes a day to go through a security check to make sure that merchandise was not being stolen. During these checks, employees were required to remove items such as wallets, belts, and keys from their persons and pass through metal detectors.[vi]

The employees filed a putative class action, alleging they should be paid for the time spent waiting for and undergoing these security checks because they were conducted for the employer’s benefit to prevent employee theft. They also alleged that the security check time could have been reduced dramatically if the employer had hired more security checkers to expedite the process or staggered employee shift end times to avoid bottlenecks.[vii]

The Court held that, although the security checks were an employer requirement which benefitted the employer, the time spent waiting for and going through them was not integral and indispensable to the employees’ principal activity, which was to pull merchandise off of shelves and to ship orders. The fact that the employer benefitted from the security checks, or could have substantially reduced the wait time by altering its check-out process or hiring more people, did not change the nature of the activity or its relationship to the principal activities the employees were employed to perform.[viii]

In so holding, the Court explained that the Portal-to-Portal Act provides that employers need not compensate employees for time spent on “activities which are preliminary to or postliminary to said principal activity or activities.”[ix] The phrase “principal activity or activities” is defined as “all activities which are an ‘integral and indispensable part of the principal activities.’”[x] In strict constructionist fashion, Justice Thomas referred to the Oxford English Dictionary’s definition of “integral,” holding an activity is integral and indispensable where it is an “intrinsic element of those [principal] activities and one which the employee cannot dispense if he is to perform his principal activities.”[xi]

The Court explained this definition is consistent with prior precedent indicating, for example, that time spent showering and changing clothes at a chemical plant where the toxic nature of the chemicals required such activity would be compensable,[xii] while time spent washing up or showering as a convenience to employees would not be compensable.[xiii] Given precedent and the aforementioned definition, the Court explained that the security screenings were not “integral and indispensable” to the employees’ duties as warehouse workers — that the screenings could have been eliminated altogether without impairing the employees’ ability to complete their work.[xiv]

Integrity Staffing has big implications for companies that use security checks at the end of their shifts (and more than a dozen class action lawsuits pending against them).[xv] Although the ruling is a clear victory for these companies, employers should exercise caution when applying this holding to other post-shift activities. In so doing, employers should consider whether the post-shift activity in question is an intrinsic part of the employee’s principal activity and one with which the employee cannot dispense if he or she is to perform that principal activity.

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[i]John R. Bode is chair of Miller & Martin’s labor and employment department, concentrating his practice on management representation for three decades. He received his J.D. at University of Richmond in 1985. He may be reached at jbode@millermartin.com or 423-785-8320.

Jennifer W. Terry is an associate at Miller & Martin, also practicing in the firm’s labor and employment department. She is a 2012 graduate of the Mercer University, Walter F. George School of Law. She may be reached at jterry@millermartin.com or 423-785-8346.

[ii]Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951 (Dec. 9, 2014).

[iii]The decision was issued by Justice Thomas. Justice Sotomayor filed a concurring opinion, in which Justice Kagan joined.

[iv]Integrity Staffing, 2014 WL 6885951 at *7.

[v]No. 13-433, 2014 WL 6885951 (Dec. 9, 2014).

[vi]Id. at *2-3.

[vii]Id. at *3.

[viii]Id. at *6-7.

[ix]Id. at *4-5 (quoting 29 U.S.C. § 254(a)).

[x]Id. at *5 (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005)).

[xi]Id.

[xii]Id. (citing Steiner v. Mitchell, 350 U.S. 247, 249, 251(1956)).

[xiii]Id. (citing 29 C.F.R. § 790.8).

[xiv]Id. at *6.

[xv]Robert Barnes, Supreme Court Rules Amazon Doesn’t Have to Pay For After-Hours Time In Security Lines, Washington Post, Dec. 9, 2014, http://www.washingtonpost.com/politics/courts_law/supreme-court-rules-amazon-doesnt-have-to-pay-for-after-hours-time-in-security-lines/2014/12/09/05c67c0c-7fb9-11e4-81fd-8c4814dfa9d7_story.html.