Burr & Forman

12.5.2014   |   Blog Articles, Business Litigation, Tennessee, Tennessee Business Litigation, United States Supreme Court

Security Screening Case May Affect Pay for Other Extra-Shift Duties

The United States Supreme Court recently heard arguments in a class action case over whether employees are entitled to compensation for time spent in a mandatory post-shift security screening. Though the case arises out of the employer’s attempt to prevent employee theft, the Court’s decision may affect whether employees must be compensated for other pre- and post-shift activities which are necessary for employees to perform their jobs. The employer in Busk v. Integrity Staffing Solutions, Inc.[1] provides warehouse space and staffing to clients such as Amazon.com. The employees are merchandise handlers and work in the warehouse where product is stored and processed to fulfill customer orders. After each shift, the employer requires the merchandise handlers to wait up to 25 minutes as they submit to a security screening meant to prevent employee theft. During the security screening, employees are searched which includes removing their wallets, keys and belts and passing through metal detectors. The security screening is performed off the clock, and employees are not paid for that time. The issue in Busk is whether the Fair Labor Standards Act (“FLSA”) as amended by the Portal-to-Portal Act of 1947, the federal law under which Busk is being decided, requires employers to compensate employees for mandatory pre- and post-shift activities. As a general rule, the FLSA does not require compensation for such activities. Numerous cases have held employers do not have to pay employees for activities such as travel from the employee parking lot, checking in and out at the beginning and end of a shift, waiting in line to receive paychecks and passing through security check points. An exception to this general rule is when the pre- and post-shift activities are “integral and indispensable” to the employee’s “principal activity.” This means employees must be paid for pre- and post-shift activities which are necessary to the principal work performed and done for the benefit of the employer. Whether extra-shift activities are “integral and indispensable” to an employee’s “principal activity” is not always easy to determine, and can sometimes result in seemingly conflicting decisions. In one case, the Ninth Circuit Court of Appeals (the federal circuit from where the Busk decision was appealed) ruled that employees required to change their uniforms on the employer’s premises were entitled to be paid for that time. In that case, the court said the mandatory on-site change of uniform was necessary to avoid contaminating silicon chips the employer manufactured.[2] The same court ruled in another case that police officers were not entitled to pay for time spent changing their uniforms at work. The court said officer uniforms were not “integral and indispensable” to a police officer’s principal work, and the officers could change at home. Officers chose to change at work for their own benefit.[3] In Busk, the employees claim the post-shift on-site security screenings are “integral and indispensable” to their principal duties and benefits the employer because the screenings prevent employee theft and product loss. The employer argued the employees’ principal job activities involved walking through the warehouse, retrieving products from inventory, and packing those items for distribution to Amazon.com customers. The security screenings occurred off the warehouse floor, after the employees completed their primary job activities. The issue of compensation for pre- and post-shift activities is not limited to security screenings. As recently as October 2014, employees at TRG Customer Solutions, Inc., based in Spring Hill, Tennessee, filed a FLSA class and collective action alleging they are entitled to compensation for pre-shift activities. The employees claim the pre-shift activities are necessary so they can begin their duties as customer service representative on time. Those pre-shift activities include (1) turning on and booting up their computers, (2) starting various programs, (3) logging on to various systems, (4) reading emails and training material, and (5) completing other essential tasks.[4] The United States Supreme Court is expected to decide Busk later this year. Based on oral arguments, some observers believe the Court will rule the post-shift security screenings are not “integral and indispensable” to the employees’ principal jobs as merchandise handlers. The Court could find in favor of the employees but limit its decision to security checkpoints; or clarify what “integral and indispensable” means in the context of an employee’s principal job duties, a ruling that could affect an employee’s right to compensation for other pre- and post-shift activities performed off the clock. [1] S. Ct. No. 13-433. [2] Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 911 (9th Cir. 2004). [3] Bamonte v. City of Mesa, 598 F.3d 1271 (9th Cir. 2010). [4] Andrews v. TRG Customer Solutions, Inc., United States District Court for the middle District of Tennessee Docket No.: 1:14-CV-00 135 (Oct. 9, 2014).

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