The employer in this case required its employees, warehouse workers who retrieved inventory and packaged it for shipment, to undergo an antitheft security screening before leaving the warehouse each day.The case involved temporary workers at an Amazon warehouse. They were actually employed by Integrity Staffing Solutions, an agency. Naturally, with all of that inventory around, security was important to minimize theft. So,
Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors.Busk and other employees filed a class action, claiming that the time spent on the screenings should be compensated because they were required to wait to be screened, because screening was for the employer's benefit, and because the screening process could take considerably more than a couple of minutes in some cases (sometimes up to 25 minutes even).
In a 9-0 opinion by Justice Thomas, with a concurrence by Justice Sotomayor with Justice Kagan joining, the Supreme Court reversed the 9th Circuit Court of Appeals.
The legal issue here involves the "Portal to Portal Act," which modified the federal Fair Labor Standards Act. The P2P Act, as I like to call it today, exempts from compensable time "activities which are preliminary to or postliminary" to "principal activities.” If they are pre- or post-luminary, they are not compensable.
Security screenings obviously are not "principal" actives. But that does not render them automatically pre- or postliminiary. That is because the term, "principal" activities, includes "all activities which are an ‘integral and indispensable part of the principal activities."
The Court explained what "integral and indispensable" means:
An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform 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.Again, if it's "integral and indispensable" then it's compensable time under the FLSA.
So, the court applied the above definition of integral and indispensable to security screenings, thusly:
The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” 29 U. S. C. §254(a)(1). Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from ware- house shelves and package those products for shipment to Amazon customers.
The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers. As explained above, 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.
(emphasis mine)
The Court rejected the 9th circuit court of appeals's conclusion that the time was compensable because the employees were "required" to undergo the screenings, and also rejected the notion that the time was compensable because it was for the employer's benefit:
If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities” the very activities that the Portal-to-Portal Act was designed to address. The employer in Anderson, for instance, required its employees to walk “from a timeclock near the factory gate to a workstation” so that they could “begin their work,” . . . . A test that turns on whether the activity is for the benefit of the employer is similarly overbroad.
The plaintiffs argued that the employer could have reduced the screening time by adding more screeners or by staggering break and shift times. But the Court held that the employer's power to reduce the time it took did not change the character of the activity from non-compensable to compensable.
So, big victory for employers under the FLSA. California employers, not so fast.
There is no P2P Act under California law. Rather, all time is compensable if the employee is "subject to the control of the employer." That's why what may seem as "preiminary" or "postliminary" under California law may nonetheless be compensable. As the California Supreme Court once wrote in rejecting importation of the P2P Act: "we conclude that the federal statutory scheme, which differs substantially from the state scheme, should be given no deference." Morillion v. Royal Packing Co., 22 Cal. 4th 575, 588 (2000).
Therefore, my opinion is, and I say that emphasizing this is NOT legal advice: employers should not change practices in California unless or until the California courts adopt the holding in this case, or unless or until a wage-hour lawyer with really good insurance says it's ok.
Greg
