On August 11, 2014, NELA filed an amicus brief in support of Respondents in the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, a Fair Labor Standards Act (FLSA) case. NELA members Mark R. Thierman and Eric Schnapper represent Respondents Jesse Busk and Laurie Castor and others similarly situated. The question presented is whether the time employees spend in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act of 1947. The issues raised in this case fall squarely within NELA’s current amicus priorities of challenging wage theft and compensable time violations.
Respondents Busk and Castro were Amazon.com warehouse workers employed by Petitioner Integrity Staffing Solutions, Inc. They seek back pay, overtime, and double damages under the FLSA for time spent in security screenings after the end of their work shifts. After clocking out, these workers had to submit to a mandatory and rigorous anti-theft screening process similar to that found at airport security check points. They were required to remove all belongings from their person, such as wallets, keys and belts, and then pass through metal detectors before being allowed to leave the facility. It was not unusual to have to wait up to 25 minutes in line each day before being screened.
The district court dismissed Respondents’ claims finding that security screenings are “preliminary” or “postliminary” activities that are non-compensable under the FLSA pursuant to the Portal-to-Portal Act. The Ninth Circuit reversed, holding that time spent in security screenings was compensable because it was “necessary to [Respondents’] primary work as warehouse employees.” The Ninth Circuit decision is reported at 713 F.3d 525 (9th Cir. 2013). Petitioner successfully urged the Supreme Court to grant certiorari, arguing that the Ninth Circuit’s decision conflicted with those in the Second and Eleventh Circuits, which 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.
Not surprisingly, amicus briefs on behalf of Petitioner were filed by the National League of Cities and other municipal governmental organizations; the Retail Litigation Center, the Chamber of Commerce and other business organizations; and the National Retail Federation. Unfortunately, the U.S. Solicitor General and the U.S. Solicitor of Labor also filed an amicus brief supporting Petitioner arguing that “Petitioner’s post-shift screenings were non-compensable because they were not ‘integral and indispensable’ to the work performed by its warehouse employees.” The Solicitor General has filed a motion requesting to be heard at oral argument, which has not yet been decided.
NELA’s amicus brief argued that the Portal-to-Portal Act provisions, while excluding preliminary and postliminary events from the definition of “work,” require payment for any task that forms an integral and indispensable part of an employee’s principal activity or activities (subject to certain exceptions not relevant here). Steiner v. Mitchell, 350 U.S. 247, 252-56 (1956). Accord Sandifer v. United States Steel Corp., 134 S. Ct. 870, 876 (2014); IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005). Petitioner maintained in its brief that an employee’s participation in loss prevention is neatly divisible from a retail worker’s principal activities. Our amicus brief disputed this proposition, arguing that “[l]oss prevention is sewn into the lining of modern retail life. Such policies benefit employers by boosting profits. And employees cannot work with inventory unless they participate in these policies.” Loss prevention procedures are indeed commonplace in today’s American workplace, particularly for retail workers. Submitting to a search ordered by Petitioner is the last principal activity of the day. Because the workers are required to participate in the security screening, it falls outside the zone of postliminary activity, and into that of compensable work.
NELA’s excellent amicus brief was drafted by NELA member Paul W. Mollica, Outten & Golden, LLP, Chicago, IL.
The American Federation of Labor and Congress of Industrial Organizations also filed an amicus brief in support of Respondents. The case is set for oral argument in the U.S. Supreme Court on October 8, 2014.