SCOTUS will decide compensability of time spent in security screenings

Is time spent in security screenings “integral and indispensable” to employees’ principal job activities? The US Supreme Court today granted certiorari in Integrity Staffing Solutions, Inc. v. Busk, and will review the 9th Circuit's April 12, 2013 judgment. [Busk v. Integrity Staffing, 713 F3d 525  (9th Cir 04/12/2013)]

Integrity Staffing Solutions provides warehouse space and staffing to clients such as

Two warehouse workers sued claiming that Integrity violated the Fair Labor Standards Act (FLSA) by requiring them to pass through a security clearance at the end of each shift, for which they were not compensated. Employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. The trial court dismissed the suit for failure to state a claim, but the 9th Circuit reversed.

The FLSA, as amended by the Portal-to-Portal Act of 1947, generally precludes compensation for activities that are “preliminary” or “postliminary” to the “principal activity or activities” that the employee “is employed to perform.” But preliminary and postliminary activities are still compensable under the Portal-to-Portal Act if they are “integral and indispensable” to an employee’s principal activities. According to the 9th Circuit, "To be 'integral and indispensable,' an activity must be (1) 'necessary to the principal work performed' and (2) 'done for the benefit of the employer.'"

The plaintiffs alleged that the screenings are intended to prevent employee theft, and the 9th Circuit found that "plausible" because the screenings are required only when employees leave work. The court said, "As alleged, the security clearances are necessary to employees’ primary work as warehouse employees and done for Integrity’s benefit. Assuming, as we must, that these allegations are true, the plaintiffs have stated a plausible claim for relief."

Two other Circuits have held that time spent in security screenings is not subject to the FLSA because it is not “integral and indispensable” to employees’ principal job activities. The 9th Circuit distinguished those cases. One involved a nuclear power plant where screening is required of everyone entering the plant. In another case the screenings were mandated by the government, so they did not benefit the employer.

The case will be set for oral argument sometime in October 2014 or later.

[For a list of current employment law cases, see Supreme Court Watch.]