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Waiting in Line for Security Check Not Compensable: SCOTUS

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By Mark Wilson, Esq. on December 10, 2014 9:46 AM

Yesterday, the Supreme Court determined that employees at Amazon warehouses don't have to be paid for the 20 minutes or so they spend at the end of the day being screened to make sure they haven't stolen anything. The unanimous opinion, authored by Justice Thomas, with a concurring opinion by Justice Sotomayor, rested on an interpretation of the Portal-to-Portal Act of 1947.

'Integral and Indispensable'

The key to determining whether an employee's pre- or post-employment activity is compensable is whether the activity is an "integral and indispensable part of the principal activities." Nice sentence, but not terribly helpful. Thomas clarified that an integral and indispensable activity is "one with which the employee cannot dispense if he is to perform his principal activities."

For this reason, the Court has found in previous cases that putting on protective clothing at a battery factory and sharpening knives at a slaughterhouse are things that an employee has to do in order to do his job. By contrast, picking things off shelves in a warehouse can be done without being screened to make sure an employee hasn't stolen something.

Justice Sotomayor Helps Out

After Integrity Staffing Solutions v. Busk, businesses may well have even more questions about what's compensable. The test, as Thomas pointed out, isn't related to what the employer wants the employee to do. It's certainly the case that the warehouse employer required employees to be screened before they left, but what the employer requires and what's objectively absolutely necessary to performing the job can be different. Only the latter gets compensated.

Justice Sotomayor's concurrence helps a little bit. She folds into the analysis not only being able to do the job, but being able to do it safely and effectively. The battery factory employee puts on protective clothing to be safer. The slaughterhouse worker sharpens knives before starting work both for his own safety and so he doesn't have to do it in the middle of the day. At the Amazon warehouse, though, security screenings didn't help the employees pick items off the shelf and distribute them better. The screenings are purely for the employer's benefit.

You haven't seen the last of the Portal-to-Portal Act, though. At oral arguments, the justices tossed out hypotheticals about counting out cash drawers at the end of a cashier's shift. They all assumed that, clearly, such an activity is covered. But is it? It depends on how you characterize a cashier's job. Counting out is just as much about the employer making sure the employee hasn't made a mistake or intentionally pocketed some cash. And if an employee spends 20 minutes counting out the cash drawer, and is compensated, is that markedly different from an Amazon employee waiting 20 minutes to go through a security screening?

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