Supreme Court Weighs in on Waiting Time

SupCourt.BlogEmployer advocates breathed a sigh of relief when the U.S. Supreme Court issued its decision that warehouse workers are not entitled to pay for time spent in anti-theft screening before leaving work. Integrity Staffing Solutions, Inc. v. Busk (U.S. 2014). This Supreme Court’s decision overturns a previous decision of the Ninth Circuit Court of Appeals holding otherwise.

Employer advocates were concerned that if the Supreme Court upheld the Ninth Circuit’s decision, it would start a wave of litigation against employers in the retail and other industries who regularly conduct pre- and post-shift screening of nonexempt employees.

Warehouse workers at two Nevada facilities sued alleging that they were entitled to pay for time spent waiting to clear mandatory security screens before leaving work. The workers, who filled orders for Amazon.com, alleged they spent on average 25 minutes per workday waiting to be screened. They argued that this time was “integral and indispensable” to their work, which is the standard for compensable time under the Fair Labor Standards Act (FLSA).

After reviewing the FLSA and its regulations, the Supreme Court came to a different conclusion. The Court held 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 Court concluded, “These 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 Supreme Court’s conclusion is consistent with the position taken by the U.S. Department of Labor (DOL), which participated in oral argument in this case. In its argument, the DOL cited its regulations at 290 CFR §790.7(g), which provide that under normal circumstances, activities such as “checking in and checking out and waiting in line to do so “ are “preliminary” or “postliminary” activities for which pay is not required.

This is the second FLSA case in a row where the Supreme Court has sided with employers. In its last term, the Court held in Sandifer v. U.S. Steel Corp. (U.S. 2014) that the FLSA did not require the employer to pay unionized steel workers for time spent putting on and taking off personal protective equipment.

This case most directly affects employers who conduct security screening, but will also influence court decisions on other preliminary and postliminary activities. Employers must analyze whether the preliminary and postliminary activities performed by their nonexempt employees are integral and indispensable to their work. See our FYI Wage and Hour: Hours Worked for more information on what time is considered hours worked for nonexempt employees, and contact an MSEC attorney with your questions.