Burr & Forman

In a previous posting, we reported the U.S. Supreme Court recently heard arguments in Busk v. Integrity Staffing Solutions, Inc.,[1] a class action over whether employees are entitled to compensation when they passed through a mandatory post-shift security checkpoint. The issue in Busk was whether the Fair Labor Standards Act (“FLSA”) as amended by the Portal-to-Portal Act of 1947 required the employer to compensate its warehouse merchandise handlers for time spent, up to 25 minutes, being searched after the shift ended to prevent employee theft. The U.S. Supreme Court decided the case in December 2014, ruling that the employees were not entitled to compensation because the post-shift security check was not “integral and indispensable” to their “principal activity.” The Court stated an activity is integral and indispensable to an employee’s principal activities if it is “an intrinsic element of [the employee’s] activities and one with which the employee cannot dispense if he is to perform his principal activities.” With that definition, which leads to more questions than it answers, the Court provided examples of compensable extra-shift activities, such as time battery-plant employees spent showering and changing clothes because chemicals in the plant were toxic to human beings; and time meatpacker employees spent sharpening their knives because dull knives would affect production on the assembly line. Those compensable activities are different, the Court says, from non-compensable time poultry-plant employees spend waiting to don protective gear because that activity was “two steps removed from the productive activity of the assembly line.” Turning to the security screenings, the Court stated that activity was not compensable because it was not the principal activity the employee was hired to perform. Rather, the employees were hired to retrieve products from warehouse shelves and package them for shipment to Amazon customers. Nor were the security screenings “integral and indispensable” because the screenings could be eliminated without affecting the employee’s ability to retrieve and package product. The Court glosses over the fact that the post-security screenings were required by the employer. This means the employees could be terminated for refusing to submit to the off-the-clock security screenings. The Court’s answer: “[t]hese are arguments properly presented to the employer at the bargaining table . . . not to a court in an FLSA claim.” Unfortunately, the Court’s ruling in Busk does not establish a clear test for future cases and does little to assist employers in complying with FLSA requirements related to extra-shift activities. As a result, litigation will continue over whether employers must pay employees for required extra-shift duties. [1] 2014 WL 6885951 (U.S. Dec. 9, 2014).

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