Authored by Rebecca Pratt DeGroff and Ashley Choren Workman

What do grapefruits, drug tests, and security screening have in common?  The Justices of the Supreme Court discussed all three during oral argument yesterday in Integrity Staffing Solutions v. Busk, analyzing the contours of compensable activities under the FLSA, as amended by the Portal-to-Portal Act, including the compensability of law clerks preparing grapefruit breakfasts for their judges.  This case, which we reported on earlier this year here and here is of interest to most employers because it asks the Court to draw the line between two different kinds of pre-shift and post-shift work activities:  those that integral and indispensable to an employee’s principal activities and thus must be paid for, and those that are purely preliminary or postliminary to an employee’s principal activities and thus need not be paid for.

In a rare move, the Department of Labor joined forces with Integrity to argue that time spent by employees going through security checks as they leave work is not compensable under the FLSA.  During the argument, the parties agreed that the time spent was “work,” as that term is defined by the FLSA.  The debate, instead, centered on whether this work time is compensable under the Portal-to-Portal Act.

Paul Clement, counsel for Integrity, argued that going through security as part of the egress process is the epitome of postliminary activity that is non-compensable under the Portal-to-Portal Act.  He explained that because the security screening occurs away from the employee’s work station it is not compensable.  Responding to a hypothetical posed by Justice Kagan, Clement distinguished security screening time from time spent by a retail employee who is responsible for clearing their cash register at the end of their shift.

Curtis Gannon, on behalf of the Department of Labor, argued that unlike time spent in drug testing, time spent in security checks is non-compensable for two primary reasons: (1) it is ordinary activity done in the course of checking in to work or checking out of work; and (2) it is classically associated with entrances and exits. According to Gannon, these factors put the security check time squarely within the ambit of non-compensable, preliminary or postliminary time under the Portal-to-Portal Act.

Mark Thierman, counsel for Respondent, argued that time spent in security checks is a compensable principal activity because it is done at the direction of the employer and for the benefit of the employer.  He further argued that because the security checks occurred at the end of the day, the continuous workday rule compels treating the time as compensable.  Finally, he also emphasized that because the amount of time spent in security checks is 20 minutes, the de minimus exception would not apply.

For the curious reader, ultimately all parties agreed that time spent by a law clerk preparing a grapefruit breakfast for a judge, another hypothetical posed by Justice Kagan, would be compensable work.

We will provide an update when the Court issues its decision, which is expected in 2015.

Leave a Reply

Your email address will not be published. Required fields are marked *