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Unsurprising Unanimous Decision: No Pay for Security Screenings

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By William Peacock, Esq. on December 09, 2014 12:54 PM

Raise your hand if you saw this coming.

Contracted employees, leaving an Amazon warehouse, have to go through security screenings. They sued for overtime pay under the Fair Labor Standards Act. The district court dismissed their lawsuit, but the Ninth Circuit reversed, holding (contrary to every other circuit court that has considered the issue) that post-shift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee's principal activities if the post-shift activities are necessary to the principal work and performed for the employer's benefit.

Not only was this a Ninth Circuit opinion (REVERSE) and contrary to the other circuits' holdings (REVERSE), but the issue is clearly controlled by the Portal-to-Portal Act, which was passed in response to a 1944 Supreme Court holding that was about as broad as the Ninth Circuit's and nearly bankrupted a number of American industries.

1947 Is Calling

When Congress passed the FLSA, they did what they often do -- they left things undefined. Critically, they left "work" and "the statutory workweek" either undefined or vaguely defined, which led to a Supreme Court decision giving those terms very broad meanings. Litigation ensued because workers wanted pay for walking back and forth between job sites and over $6 billion in payouts resulted ... in 1940s money.

Congress passed an emergency law, the Portal to Portal Act, to clarify things a bit. It exempted travel to or from work, as well as "activities which are preliminary to or postliminary to said principal activity or activities" from overtime pay.

Where does a post-shift security check to prevent theft fall into the spectrum of pre, post or integral activities? The High Court held it's a postliminary activity that, contrary to the Ninth Circuit's holding, is not "integral" to the core duties of the employee.

Where's the 'Integral' Line for 'Postliminary' Activities?

How does one decide what is integral to one's duties? Prior court decisions have held that battery-plant employees' showers were integral to their duties because the chemicals were toxic and the employer conceded that "the clothes-changing and showering activities of the employees [were] indispensable to the performance of their productive work and integrally related thereto." Ditto for meat packers sharpening their knives, as dull knives are dangerous and increase wasted product.

But poultry employees donning safety gear wasn't compensable because it was "two steps removed from the productive activity."

If that isn't clear enough, the Department of Labor has also issued regulations classifying "checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks" as "preliminary" or "postliminary" activities.

Where the Ninth Circuit erred was its focus on who benefited from and who required the activity.

"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," Justice Clarence Thomas noted.

In a concurrence, Justice Sonia Sotomayor summed up the majority's holding:

"The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so -- activities that Congress clearly deemed to be preliminary or postlimininary," Sotomayor wrote. "[T]he Department of Labor reached the very same conclusion regarding similar security screenings shortly after the Portal-to-Portal Act was adopted [...] and we owe deference to that determination."

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