Security Screening Time Need Not Be Paid, SCOTUS Rules – Expect California Law to Differ
Waiting to go through a security screening and then being screened is not compensable time under federal wage-hour law, the U.S. Supreme Court decided in a case issued today (December 9). But don’t expect California courts to interpret California law in the same way.
In an opinion by Justice Clarence Thomas in Integrity Staffing Solutions, Inc. v. Busk, the Court unanimously ruled that when hourly employees waited for and then went through an antitheft security screen at Amazon.com warehouses, they were engaged in “noncompensable postliminary activities” under the federal Portal-to-Portal Act because the screenings “were not the ‘principal activity or activities which [the] employee is employed to perform.’” The ruling reversed a decision by the Ninth Circuit Court of Appeals.
The Court also found the security screenings were not “integral and indispensable” to the employees work in the warehouses. The Court explained:
[A]n activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.
Slip op. at p. 7. Consequently, the Court found employees did not have to be paid for their time waiting for and then undergoing the security screening.
The Court observed that the Ninth Circuit had erred by focusing on whether the employer required a particular activity. “The integral and indispensable test is tied to the productive work that the employee is employed to perform,” Justice Thomas wrote. “If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address.” Slip op. at p. 9.
Relying on a 1951 DOL opinion letter which addressed both pre-shift safety screenings and post-shift anti-theft screenings, the Supreme Court noted that DOL “drew no distinction between the searches conducted for the safety of the employees and those conducted for the purpose of preventing theft—neither were compensable under the Portal-to-Portal Act.” In agreeing with the 1951 opinion letter, the Court rejected the Ninth Circuit’s holding in Busk because it deviated from the correct Portal-to-Portal Act analysis by focusing on whether the employer required the activity. An activity is “integral and indispensable,” Busk reinforces, only where it is “tied to the productive work that the employee is employed to perform.”
Two Integrity Staffing hourly employees at two warehouses in Nevada brought the suit under the federal Fair Labor Standards Act (FLSA) and Nevada law. They retrieved products from shelves and packaged those products for delivery to Amazon customers. Integrity Staffing required employees to pass a security screening before leaving the warehouse at the end of each day. Employees removed wallets, keys, belts and similar items from their persons and passed through metal detectors to complete the screening.
The two employees filed a putative class action on behalf of employees in the Nevada warehouses. They claimed that under the FLSA they should have been paid for time spent waiting and undergoing the security screenings, alleging the time amounted to roughly 25 minutes each day. They contended the screenings were conducted to prevent employee theft and so occurred “solely for the benefit of the employers and their customers.” They also contended the time could have been reduced to a de minimis amount by adding screeners or staggering shift end times so workers could pass more quickly through the checkpoints.
The District Court dismissed the complaint for failure to state a claim, but the Ninth Circuit reversed. The Ninth Circuit had found that postshift activities that would ordinarily be unpaid are nevertheless compensable as integral and indispensable to an employee’s principal activities if those postshift activities are necessary to the principal work performed and are done for the benefit of the employer. Accepting as true the allegation that Integrity Staffing required the security screenings to prevent employee theft, the Ninth Circuit had concluded that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for Integrity Staffing’s benefit. The Supreme Court overruled this reasoning.
California wage-hour law does not look either to the principal activities of the employee or to whether those activities are integral and indispensable to the work being performed. Rather, California evaluates whether the employee is subject to the control of the employer. Using this analysis, the California Supreme Court held that farmworkers had to be paid for time traveling by bus from a meeting point to the field even though they could read, sleep, or do other personal activities while on the bus. In Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 578, the Court concluded that “the time agricultural employees are required to spend traveling on their employer’s buses is compensable under Wage Order No. 14-80 because they are ‘subject to the control of an employer’ and do not also have to be ‘suffered or permitted to work’ during this travel period.”
Several security screening cases have been filed in California courts under California law as well as under the FLSA. At least one trial court denied the employer’s summary judgment motion, but then stayed the case pending the U.S. Supreme Court decision that issued today. Court watchers will be interested to see what impact today’s ruling has on California cases – but because of the “subject to control of the employer” test, don’t expect California courts to find the Integrity Staffing v. Busk rationale applies to claims under California law.