Authored by Jessica Schauer Lieberman
The Department of Labor surprised employers last week by weighing in on Integrity Staffing Solutions, Inc. v. Busk, which is currently pending before the Supreme Court, and supporting the employer’s position. The administration’s amicus brief, filed last Wednesday, is good news for employers that require their workers to pass through security screenings before or after their regular work shifts.
As readers of this blog will recall (see discussions here and here), the Integrity case is expected to address the question of whether time spent by employees going through security checks as they leave work is compensable under the FLSA. The Supreme Court will review a Ninth Circuit decision that held, contrary to previous decisions out of the Second and Eleventh Circuits, that employees must be paid for such time where the security checks are mandated by the employer and are for the employer’s benefit.
Although the current administration’s amicus filings in FLSA cases have often supported plaintiffs’ positions — even where doing so required breaking with longstanding agency guidance (see, e.g., here and here) — the Ninth Circuit’s decision here apparently has proved to be too far afield even to garner the government’s support.
Under the 1947 FLSA amendments known as Portal-to-Portal Act, “preliminary and postliminary activities” are excluded from compensable time unless they are “integral and indispensable” to the principal activities an employee is hired to perform. In its brief, the administration argues that the Ninth Circuit’s interpretation of the term “integral and indispensable” is too broad and in conflict with the DOL’s longstanding interpretive guidance.
Specifically, the administration argues that pre- and post-shift activities should not be considered “integral and indispensable” unless there is a “closer or more direct between a principal activity and the activity in question” than is present in the Integrity case. The brief relies in part on an opinion letter issued by the DOL in 1951 that “made no distinction between searches conducted for general-security purposes and those conducted at least in part for anti-theft purposes, finding that both were noncompensable under the circumstances.” It further notes that activities identified in the legislative history and interpretive guidance as non-compensable, like “checking out” at the end of a shift, are closely analogous to the security check process at issue in the case.
DOL watchers will surely wonder why the administration has taken this rare employer-friendly position. After several decisions eroding the level of deference afforded to its informal guidance documents, the DOL may wish to sure up its longstanding Portal-to-Portal Act “regulations,” which are published in the CFR but did not go through a full notice-and-comment process. Or, as we speculated with respect to the administration’s position in another FLSA case recently decided by the Supreme Court, the presence of the Solicitor General on the brief may have tempered the more pro-employee DOL. Regardless of the reasons, however, employers should welcome this development.