From warehouses to retail establishments, airports to power plants, employees in countless industries spend time every day in pre- or post-shift security screenings. For decades, it was well accepted that such time was not compensable under the FLSA. In 2013, however, the Ninth Circuit took a radical step away from established precedent when it held in Busk v. Integrity Staffing Solutions, Inc., No. 11-16892 (April 12, 2013), that such time may be compensable. Later this month, the Supreme Court is poised to decide whether to review this decision or let it stand.
The Busk plaintiffs worked in an Amazon.com warehouse performing typical warehouse job duties, picking items from inventory to fill orders placed by Amazon.com customers. At the end of their shift, workers left their work stations, clocked out, and proceeded through security screenings located near the warehouse exit. During the screening process, plaintiffs emptied their pockets and walked through a metal detector. Security staff visually and/or physically searched workers’ bags. According to the complaint, waiting in line for and proceeding through these screenings took up to 25 minutes.
In October 2010, the United States District Court for the District of Nevada granted Defendant Integrity’s motion to dismiss on the basis of failure to state a claim. Consistent with all prior court decisions to consider this issue, the district court held that, as a matter of law, time spent going through security screening was not compensable because such time was not “integral and indispensable” to plaintiffs’ principal job duties.
On appeal, the Ninth Circuit reversed, departing from the Second and Eleventh Circuit Courts of Appeal. The Ninth Circuit concluded that the post-shift security screenings are compensable under the FLSA because they are “required” by Integrity and are performed “for Integrity’s benefit” in preventing employee theft.
The Cert Petition
Defendant Integrity has petitioned the Supreme Court to review the Ninth Circuit’s decision, arguing that the appellate court misconstrued both the Portal-to-Portal Act and Supreme Court precedent. Specifically, Integrity argues that preliminary and postliminary activities are only compensable under the FLSA if they are integral and indispensable to the productive work that the employee was hired to perform. According to Integrity, two key facts undermine the Ninth Circuit’s holding: (1) security screenings occurred off the warehouse floors after the workers completed their productive work; and (2) the screenings were not “indispensable” to the workers principal job duties of retrieving items from inventory to fill orders.
In support of its cert petition, Integrity identifies Busk as creating a circuit split. Integrity argues that the Supreme Court must resolve this split by reversing the Ninth Circuit because its decision “threatens to impose massive retroactive liability on employers, and to render the Portal-to-Portal Act—which was enacted to prevent an unduly expansive application of the FLSA—largely toothless.” Integrity points out that in the months following the Ninth Circuit’s decision, plaintiffs’ attorneys have already filed numerous nationwide class actions against large corporations (including Apple, Amazon.com, and CVS) seeking back pay (and other damages) for time employees spend in security screenings. Several employer groups have filed amicus briefs in support of Integrity.
Implications For Employers
This case is a “must watch” for all employers that require employees to go through security screenings. If the Supreme Court denies the petition without comment, the Ninth Circuit’s decision will stand, and we expect to see courts flooded with copy-cat litigation. While the Ninth Circuit will be ground zero, employers will likely face these claims in state and federal courts across the country. Post-Busk, employers have already seen unprecedented nationwide litigation related to the compensability of time spent in security screenings. If the Supreme Court grants cert, the Court will provide some legal certainty to employers about whether time spent waiting in a security screening line is compensable. This will prevent forum shopping by plaintiffs and ensure that the FLSA is applied uniformly across the country. Employers will also be able to predictably conduct business without additional litigation concerns (and costs) when they implement security screening at their facilities. The Supreme Court’s decision on Integrity’s cert petition in Busk is expected on or around February 21, 2014.